January 23, 2015
A new HR Policy CHRO Guide describes in lay terms the legal issues surrounding employer wellness programs that will be the subject of a Senate hearing next week. As described in the Guide, the programs have come under legal attack by the Equal Employment Opportunity Commission's recent litigation. The Guide describes the various statutory provisions that have come into play—the most problematic being the ADA requirement that wellness programs be "voluntary" and not "mandatory," and whether the financial incentives allowed under the ACA are penalties for employees who fail to take advantage of the incentives. Although the EEOC's ADA regulations and guidance do not define when, or at what level, financial incentives for participating in a wellness program turn a voluntary program into an involuntary one that violates the ADA, the agency recently sought to enjoin one employer's wellness program that fully complies with the ACA. Because of the strong bipartisan political support for wellness programs, the Senate Health, Education, Labor, and Pensions Committee will hold a hearing on January 29th to highlight their benefits, and may also introduce legislation, particularly if the EEOC fails to issue guidance or if the agency's guidance is perceived to significantly limit the financial incentives employers are allowed under the ACA.