Is EEOC spitting in the punchbowl at the company wellness party?

If you’re like a lot of employers, you may think wellness programs are the best thing since, well, since sliced apples and green salads.

After all, a good wellness program provides lots of carrots (pun intended) for employees to engage in healthy behaviors – careful eating, exercise, smoking cessation and the like.

So we hate to tell you this, but there’s a problem: The EEOC is making noises about some aspects of wellness programs possibly discriminating against people with disabilities. And advocacy groups solicited by the EEOC are saying these programs may even discriminate against women, older workers and minorities.

Moving the cheese?
What??!! Aren’t there plenty of legal guidelines – incorporated into the ADA, HIPAA, and most recently the Patient Protection and Affordable Care Act (PPACA) – that shield employers who offer wellness programs from accusations of discrimination?

Yes, there are. The ADA and HIPAA specify that employers can offer incentives of up to 20% of an employee’s health insurance premium to encourage the person to meet wellness targets.

The PPACA goes farther, allowing a discount of up to 30% for employees who participate in wellness programs.

So what’s the EEOC’s deal, anyway?

Possible conflict with anti-bias law
The anti-discrimination watchdog isn’t using inflammatory language against wellness programs. Its leaders acknowledge the “broad, bipartisan support” for expanded use of these programs to reduce healthcare costs.

But at the same time, EEOC commissioners, at a recent hearing in Washington, also spoke of a need to insure that wellness programs are consistent with equal employment opportunity laws. Translation: There are some possible aspects of these programs that could violate one or more federal antidiscrimination law.

Guidance needed
The EEOC hasn’t yet taken an official position on wellness programs. What it’s doing is gathering information with a possible eye toward issuing guidance, as it’s done in past years on topics ranging from the use of arrest and conviction records in employment, to disparate treatment of workers with caregiving responsibilities.

Indications are that if the EEOC does publish a guidance document on wellness programs – something employer groups and benefits providers are clamoring for – it will focus on at least three areas:

• whether a program is truly voluntary – a necessity for it to be nondiscriminatory under the ADA
• medical histories, and
• incentives.

Improper incentives
At the recent hearing, the EEOC’s acting associate legal counsel, Christopher Kuczynski, emphasized that certain kinds of employer carrots/sticks would make a wellness program involuntary, and thus probably illegal.

“One thing we think would render a program involuntary is if an employer says you won’t get health insurance if you don’t participate,” Kuczynski said. “Do not have a program like that.”

He also said that until the EEOC clarifies what “voluntary” means, employers may want to go slow on wellness programs that ask employees for health histories or other medical information. It’s safer to have a program that doesn’t require a medical exam, and doesn’t ask any questions that might relate to possible disabilities, he said.

Some employer mistakes
As examples of mistakes that can occur with wellness programs, Kuczynski listed several cases where employers were charged with ADA violations:

• An employer imposed a bi-weekly $20 surcharge on any employee who did not complete a health risk assessment (HRA).
• Employees who did not fill out an HRA lost the employer contribution toward health insurance premiums.
• An employee who was hospitalized failed to attend an all-employee meeting at which testing was administered as part of a wellness program, and then did not receive testing equipment and forms sent to his home. He was told that his health insurance coverage was terminated.
• An employer required all employees to participate in an HRA in order to get health insurance, and imposed a bi-weekly surcharge of $20 on any employee (up to $40 for an employee and a spouse) that could be avoided only if the employee and/or spouse (1) met three out of five health outcomes related to blood pressure, cholesterol, blood glucose, and waist size; or (2) agreed to participate in at least one program designed to reduce specified health risk factors.