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Thursday, March 28, 2013

Whenever an employer wants to implement a wellness program, we are always compelled to advise them that the Equal Employment Opportunity Commission (EEOC) has yet to give us official guidance on the application of the Americans with Disabilities Act to wellness programs.  The issue under the ADA is that, generally speaking, wellness programs usually involve disability-related inquiries, as that term is defined under the ADA.  As such, to satisfy the ADA’s requirements, in the EEOC’s view the programs have to be voluntary.  A program is voluntary for this purposes as long as the employer neither requires participation, nor penalizes employees who do not participate.

There was a 2009 informal discussion letter that was released and then subsequently revised wherein the EEOC, in the first version, said that compliance with the HIPAA nondiscrimination rules would make a program compliant with the ADA.  The letter was subsequently revised to say that the EEOC has not ruled on whether compliance with HIPAA would meet compliance with the ADA.

The EEOC recently released a letter from January of this year involving a wellness program for employees with diabetes.  The program waived the annual deductible for employees who met certain requirements, such as enrollment in a disease management program or adherence to a doctor’s exercise and medication recommendations.  The EEOC said that reasonable accommodations would have to be made for those who could not meet the wellness program’s standard due a disability (as broadly defined in the ADA).  This is, of course, similar to the reasonable accommodation standard under the HIPAA nondiscrimination rules.  The EEOC yet again did not express an opinion on what level of inducement would cause a wellness program to be involuntary.

In fairness, these discussion letters are not official, binding guidance, so they would make a bad place for the EEOC to provide an opinion on such an important issue.  However, their failure to address it through formal regulation remains somewhat troubling.

Interestingly, when courts have considered wellness programs under the ADA, they analyzed wellness programs differently.  They have generally held that the wellness programs are part of a bona fide benefit plan, and thus fall under a separate ADA exemption that does not implicate the voluntariness issue.  Of course, there are limitations to those holdings, as described in our prior post on one of those cases.

The bottom line is that, in designing a wellness program, employers should always consider the ADA risk involved before proceeding.

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