The Equal Employment Opportunity Commission held a hearing this week on “Wellness Programs Under Federal Equal Employment Opportunity Laws.”  Amy Moore testified at the hearing on behalf of long-time Covington client The ERISA Industry Committee (“ERIC”), a non-profit association committed to the advancement of the employee retirement, health, and other benefit programs of America’s largest employers.

The hearing focused on the treatment of wellness programs under the Americans With Disabilities Act (“ADA”).  The ADA permits employers to offer voluntary medical examinations or request voluntary medical histories as long as they keep the information confidential and do not use it for discriminatory purposes.  The EEOC issued enforcement guidance in 2000 stating that voluntary wellness programs can qualify for this exception; but the EEOC has never made it clear whether a wellness program is “voluntary” if it offers employees incentives to participate in the program. 

ERIC and other employer organizations testifying at the hearing emphasized the key role that incentives play in making wellness programs successful.  They urged the EEOC to clarify that an employer does not violate the ADA or other equal employment opportunity laws if the employer offers employees a reasonable financial incentive to participate in a wellness program, or to provide personal medical information as part of the program.  They pointed out that the Affordable Care Act endorsed and expanded existing guidelines for incentive-based wellness programs under HIPAA, and they asked the EEOC to confirm that an incentive-based wellness program will not violate the ADA if it conforms to the HIPAA standards.

Employee advocates questioned whether a wellness program is truly voluntary under the ADA if an employer withholds incentives from employees who decline to participate.  The advocates also expressed a concern that wellness programs might have a disparate impact on other protected classes of workers, such as women, minorities, and the elderly.

Although the EEOC did not commit to any course of action following the hearing, several of the Commissioners agreed that it would be beneficial for the EEOC to provide additional guidance concerning the status of wellness programs under the federal equal employment opportunity laws.

A video recording of the hearing, and the written testimony of the witnesses, is available on the EEOC’s website, here.