October 18, 2013
D. Mark Wilson
Employee Relations, Federal Health Care Reform
In a recent letter to the Equal Employment Opportunity Commission, Representative Louise Slaughter (D-NY) raised concerns about wellness programs that include financial incentives to voluntarily participate in health assessments that collect personal health information, and she encouraged the agency to promptly draft guidance stopping this type of "abuse." In the letter, Rep. Slaughter, who was the chief sponsor of the Genetic Information Nondiscrimination Act (GINA), stated that "any employer wellness program that coerces employees to provide genetic information through monetary incentives would violate the core intent of GINA and other civil rights laws’ protection." Until now, the agency has decided against taking a position on the issue. Last January, in an informal letter responding to an inquiry concerning a wellness program, the EEOC said it "has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary." In May, the Commission held a public hearing to discuss what restrictions the Americans with Disabilities Act may impose on the ability of employers to offer incentives for participating in a workplace wellness program. Since then, however, the EEOC has not taken any further action, and at this time it is not clear if, or when, the agency might issue such guidance.