Employer Wellness Programs Need Guidance to Avoid Discrimination

by U.S. Equal Employment Opportunity Commission (EEOC)
Contact

Panel of Experts Tells EEOC of Need to Clarify Interplay Between Programs, Anti-Discrimination Laws

WASHINGTON-Wellness programs are an increasingly common feature of employee benefits programs, and guidance is needed to avoid violations of federal equal employment opportunity laws, a panel of experts representing business, advocacy groups and providers told the Equal Employment Opportunity Commission (EEOC) at a meeting held today.

"We appreciate the valuable insights and diverse perspectives provided by today's panelists," said EEOC Chair Jacqueline A. Berrien. "There has been broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs, but today's meeting underscored the importance of insuring that those programs are designed and implemented in a manner that is consistent with federal equal employment opportunity laws."

Commissioner Victoria A. Lipnic added, "As wellness programs become more prevalent, fostered in part by the signature health care initiative of the Administration, we can be certain that their use will present more questions with respect to the federal laws we enforce. I believe we have a responsibility where possible to let stakeholders know the Commission's position on these important questions."

A majority of employers now offer some sort of wellness program: 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation, which researches issues relating to health care. She added that many of these programs offer some sort of financial incentive for participation, which can range from gift cards to higher employer contributions for insurance premiums, or penalties like additional surcharges to employees for health insurance.

The most common intersection of these programs and the statutes EEOC enforces occurs when the programs require medical exams or ask disability-related questions, both of which would ordinarily give rise to a violation of the Americans with Disabilities Act (ADA), EEOC Acting Associate Legal Counsel Christopher Kuczynski told the Commission. He explained that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of "voluntary" merits further clarification by the Commission.

Some panelists also argued that EEOC's regulations under the Genetic Information Nondiscrimination Act (GINA)-which prohibits acquiring genetic information including family medical history--should provide guidance on whether spouses of employees may be asked for health information in the context of wellness programs.

Speaking on behalf of the Consortium of Citizens with Disabilities (CCD), Jennifer Mathis warned against the use of penalties or monetary incentives for participation in wellness programs. Citing the high rate of unemployment for people with disabilities, Mathis told the Commission that the CCD "is concerned that employer-based health programs which penalize people with disabilities for not being as 'well' as others-and for failing to disclose disability-related information the ADA permits them to keep confidential-make it even more difficult for individuals with disabilities to obtain employment on fair and equal terms."

Other panelists, including Leslie Silverman, a former EEOC Commissioner now a lawyer representing large employers, urged the Commission to provide guidance on the application of the ADA and GINA to wellness programs in order to facilitate employer compliance and clarify the relationship between the ADA, GINA, the Health Information Portability and Accountability Act (HIPPA) and the Affordable Care Act (ACA) provisions on incentives and penalties.

While most of the panelists discussed wellness programs in the context of ADA or GINA violations, Judith Lichtman of the National Partnership for Women & Families, warned of potential violations of Title VII of the Civil Rights Act's prohibitions on race, sex, and national origin discrimination, and the Age Discrimination in Employment Act's (ADEA) prohibitions on discrimination against people 40 and older.

Lichtman noted that women tend to have more health problems than men and older people tend to have more problems than the young. Many health conditions, such as obesity, diabetes and hypertension, disproportionately affect members of racial minorities. Punitive measures for failing to meet certain biometric markers therefore could have an unjustified disparate impact on certain groups, in violation of both Title VII and the ADEA, she told the Commission.

The Commission will hold open the Wellness Commission meeting record for 15 days, and invites members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to: Commissionmeetingcomments@eeoc.gov.

Comments submitted by the public will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, those comments may be publicly disclosed on the EEOC's public website, in response to Freedom of Information Act requests, or in the Commission's library. Persons submitting comments in response to this solicitation are consenting to their use and consideration by the Commission and to their public dissemination.  Accordingly, they should not include any information that persons would not want made public, such as home address, telephone number, etc. Note that when comments are submitted by e-mail, the sender's e-mail address automatically appears on the message.

The EEOC enforces federal laws prohibiting discrimination in employment. More information about the EEOC, including panelists' statements, biographies and a transcript of this meeting, can be found at www.eeoc.gov.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© U.S. Equal Employment Opportunity Commission (EEOC) | Attorney Advertising

Written by:

U.S. Equal Employment Opportunity Commission (EEOC)
Contact
more
less

U.S. Equal Employment Opportunity Commission (EEOC) on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.