The U.S. Equal Employment Opportunity Commission (EEOC) is going to offer clarification on wellness programs and federal nondiscrimination compliance, after several business groups and disability advocates asked for guidance on the issue.
Even though the Internal Revenue Service recently said wellness programs won't count towards Affordable Care Act minimum coverage requirements, they are expected to continue growing. In part, they're seen as a way to provide incentives for employee health improvement, and some types of wellness programs not involving fringe benefits can be tax deductible, like on-premise meals or gym memberships. (Some states, like Massachusetts, are also offering tax credits for business wellness programs, which under a new law gives employers with wellness programs a tax credit equal to 25 percent of the cost, up to $10,000.)
But as wellness programs expand and as some include biometric surveys or mandatory participation tied to benefit packages, some employment lawyers have sensed a gray area amid a patchwork of laws and employee and disability advocates have raised concerns over possible discrimination.
At a public meeting in early May, EEOC acting associate legal counsel Christopher Kuczynski said that employers requiring medical exams or asking questions related to disabilities would typically lead to a violation of the Americans with Disabilities Act (ADA). Although the ADA does allow employers to ask for medical information in connection with voluntary wellness programs, "the meaning of 'voluntary' merits further clarification by the Commission."
According to a recent survey by the National Business Group on Health, about 7 percent of employers polled said employees opting not to complete biometric screenings -- which typically measure body mass index, blood pressure, waistline, blood sugar, cholesterol and triglyceride levels -- would be defaulted into a less attractive health plan subset. And three percent of employers in the survey said workers opting out of risk assessments or biometric screenings wouldn't be eligible for benefits.
Most of the speakers at the EEOC meeting called for clarification on wellness programs and the ADA and Genetic Information Nondiscrimination Act (GINA). Judith Lichtman, senior advisor at the National Partnership for Women & Families, said some wellness program practices could also violate the Civil Rights Act's prohibitions on race, sex and national origin discrimination, as well as the Age Discrimination in Employment Act's prohibitions on discrimination against people 40 and older.
Women tend to have more health problems than men and older people tend to have more health problems than the young, Litchman said (although by some estimates older women have lower health costs than older men). And many of the chronic conditions employers are screening for in risk assessments -- like diabetes and hypertension -- disproportionately affects racial minorities, she said.
"Wellness programs that impose punitive measures, or grant so-called 'rewards' in the form of lower insurance premiums to some employees but not to others, could run afoul of anti-discrimination laws if they have a disparate impact on members of a protected group," Litchman said. And, she added, "There is scant evidence showing that punitive programs tying health insurance premiums to health outcomes actually improve employee health."
Another speaker, former EEOC Commissioner Leslie Silverman, now a partner in the labor and employment department at the law firm Proskauer Rose, said there are currently several wellness program and compliance questions she can't answer for corporate clients. Silverman called for the EEOC to provide holistic guidance on wellness programs as they relate to several potentially overlapping statutes in the ADA, GINA, HIPAA and the Affordable Care Act.