Employer Wellness Fight Heats Up

December 16th, 2014 by MorganDowney Leave a reply »

The Equal Employment Opportunity Commission (EEOC) has announced that they will propose, in 2015, amendments to regulations implementing the Americans with Disabilities Act (ADA) “to address the interaction between title 1 of the ADA and financial inducements and/or penalties as part of wellness programs offered through health plans” as well as other aspects of wellness programs that may be subject to the ADA’s nondiscrimination provisions. A notice of proposed rulemaking is expected to be issued in February, 2015.

The fur will certainly be flying when the proposed regulations come out. Business groups have come out heavily against a case the EEOC has already brought against three employers. One case, against Orion Energy, EEOC challenged the company’s plan requirement that employees participate in a health risk assessment and provide a blood sample. Employees who declined to participate are required to bear the entire costs of their health plan plus an additional $50 month penalty for non-participation. The EEOC has stated that voluntary participation in wellness programs is permissible under the ADA. However, employers cannot penalize employees who refuse to participate. According to the EEOC, “penalizing” means imposing significant costs such as shifting large portions of health care expenses to the employees or depriving them of significant incentives allowed to employees who do participate.

The second case was brought against Honeywell International because of penalties imposed on employees and their spouses who did not participate in biometric testing. This time violations of the Genetic Information Nondiscrimination Act were also included along with claims of violation of the ADA. Under federal regulations, an employee’s family medical history is considered to fall within the definition of “genetic information.” The request by EEOC for a temporary restraining order was denied.

Honeywell employees could be penalized up to $4,000 for not participating.

The third case, against Flambeau, Inc., claimed that the company violated the ADA by requiring a medical history as well as biometric screening. The inquiries were not job-related or consistent with business necessity, in the eyes of the EEOC.

But the business community is fighting back. The Business Roundtable has told the White House that US CEOs were considering withdrawing their support for the Affordable Care Act based on these three cases brought by the EEOC. Politico has reported that President Obama press secretary Josh Earnest offered that the EEOC suits “could be inconsistent with what we know about wellness programs…we know that they are good for both employers and employees.” Really? A recent post in Health Affairs by Al Lewis and colleagues raises a host of questions on studies showing wellness programs help employees and lower costs.  Also, see this article in the Los Angeles Times about employer wellness scams.

Luckily, the EEOC is an independent agency and is more likely to stick up for persons with disabilities than is the Obama Administration.