EEOC to Step Up Consideration of Potential Discrimination in Wellness Programs

May 03, 2013

The recent Senate confirmation of Jenny Yang to the Equal Employment Opportunity Commission has jumpstarted the debate over whether or not wellness programs violate the Americans with Disabilities Act and is likely to accelerate movement on several other controversial issues as well.  The EEOC's aggressive agenda had been delayed for one year after Democrat Commissioner Stuart Ishimaru's term expired in April 2012, leaving a split of two Democrats and two Republicans.  In the wake of Democrat Yang's confirmation, the EEOC announced this week it will hold a hearing on May 8th to discuss the treatment of wellness programs under the ADA and the Genetic Information Nondiscrimination Act.  The primary focus will be on a new informal EEOC discussion letter that indicated the agency is considering whether offering rewards for certain behavior and/or health conditions effectively amounts to a requirement to participate in the wellness program.  If so, the wellness program becomes involuntary, and therefore potentially a violation of the ADA.  However, this potential conflict with the ADA runs counter to the intent of the Affordable Care Act to encourage wellness programs and a proposed rule that the IRS published this week, allowing employers to count wellness program benefits related to tobacco use when they calculate the minimum value and affordability of their health care plans.  Wellness programs are not the only activist item on the EEOC's agenda with its new majority.  The commission is also likely to continue to scrutinize employers' criminal and credit background checks and leave policies for individuals with disabilities, among other things.