The History of Employer-Sponsored Wellness Programs

With the Affordable Care Act’s explicit encouragement, it is no surprise that employer-sponsored wellness programs have been on the rise. However, they have come up against some notable challenges for possibly violating anti-discrimination laws, including the Americans with Disabilities Act (“ADA”), because they provide incentives for those employees who choose to participate in them. The Equal Employment Opportunity Commission (“EEOC”) weighed in on the issue in May 2016 by publishing regulations regarding employer-sponsored wellness programs.

The EEOC Gets Sued

In response to these rules, the AARP sued the EEOC requesting a preliminary injunction. The AARP argued that these rules allow employers to impose penalties on employees who choose not to participate in wellness programs in order to keep their medical information private and protect their disability status. The court denied the request for a preliminary injunction, but the AARP is still pursuing this litigation. As of March 1, 2017, the EEOC has moved to dismiss the lawsuit, but it is unclear how the court will rule.

The House Proposed Bill

On March 3, 2017, the House Committee on Education and the Workforce unveiled a health care legislative proposal that would solidify that these types of wellness programs do not interfere with protections under the ADA or the Genetic Information Nondiscrimination Act (“GINA”). The bill provides that the incentives offered by wellness programs do not impose penalties on employees who wish to keep their medical information private. Although it is uncertain whether this bill will be adopted as law, the bipartisan support of wellness programs makes its passage look promising. While the House bill is pending, however, the EEOC rules are the best resource for employers to avoid liability under the ADA and GINA.

Keep an Eye Out

Employer-sponsored wellness programs became popular under the Affordable Care Act. The recently proposed health care bill, the American Health Care Act, continued to provide incentives for participation in such wellness programs. We will continue to provide updates regarding these issues as the landscape changes for these wellness programs with the litigation against the EEOC, the proposed bill in the House, and any future health care reform.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Accessing this blog and reading its content does not create an attorney-client relationship with the author or with Miles & Stockbridge. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

[View source.]