The Working Paper - June 2013: EEOC Says Wellness Plans Must Provide Reasonable Accommodations Under ADA

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In a letter dated January 18, 2013, the Office of Legal Counsel for the Equal Employment Opportunity Commission (EEOC) stated that wellness programs covered by federal regulations are required to provide participants with reasonable accommodations under the Americans with Disabilities Act (ADA). A wellness program covered by federal regulations is generally any program that exists to promote health and prevent disease that is part of a group health plan. Examples include: a program that reduces an individual’s cost-sharing for complying with a preventive care plan; a diagnostic testing program for health problems; and rewards for attending educational classes, following healthy lifestyle recommendations, or meeting certain biometric targets (such as weight, cholesterol, nicotine use, or blood pressure targets). In certain cases, an employee’s health condition may prevent the employee from participating in the program and thereby prevent him/her from receiving any associated benefit or reward.

The EEOC’s letter was issued in response to an employer’s request for guidance about its obligation to provide reasonable accommodation for an employee to participate in a program it voluntarily offered to eligible employees that resulted in the empler’s health plan waiving its annual deductible, if the employee met certain requirements, such as enrollment in a disease management program or adherence to a doctor’s exercise and medication recommendations. The employer had an employee who could not participate in the plan because of his/her health condition and was unsure if the program had to provide reasonable accommodations for the employee to participate. After reviewing the circumstances the employer presented, the EEOC determined that the program constituted a wellness program and that the program was required to provide reasonable accommodations for the employee under the ADA. The EEOC stated the following in its letter: “If a wellness program is voluntary and an employer requires participants to meet certain health outcomes or to engage in certain activities in order to remain in the program or to earn rewards, it must provide reasonable accommodations, absent undue hardship, to those individuals who are unable to meet the outcomes or engage in specific activities due to disability.” Citing one of the requirements of the program that required employees to use medications at a rate of more than 80% of prescribed usage, the EEOC stated that if the employee were unable to meet that requirement, the program would have “to provide a reasonable accommodation to allow the individual to participate in the plan and to earn whatever reward is available.” The EEOC did not elaborate on what would be reasonable accommodation in that situation.

The EEOC also stated that an employee with a disability could be lawfully removed from a voluntary wellness plan for failure to comply with plan requirements, but only if the employee were given reasonable accommodations and he/she remained eligible to participate in the employer’s standard benefit plan.

The EEOC’s determination that wellness programs must provide reasonable accommodations is not surprising given the ADA’s broad application to an employee’s terms and conditions of employment. Employers with wellness programs should take steps to ensure that their wellness programs inform employees of the availability of reasonable accommodations to participate and provide them where needed. Employers should also be prepared to engage in the interactive process with employees to identify possible reasonable accommodations that will allow employees to participate in their wellness programs.