HR Policy Presses EEOC to Halt Attack on Wellness Programs

Employee Relations, Employment Law, Federal Health Care Reform

This week, HR Policy sent a strong letter to the Equal Employment Opportunity Commission urging it to dismiss the charges against Honeywell's wellness program and "work with employers to develop guidance that recognizes both the significant value of wellness programs and Congress' intention to encourage and expand these programs under the ACA."  Earlier this week, a federal district court judge denied EEOC General Counsel David Lopez's motion for a temporary restraining order against Honeywell's program, but the underlying charges are still pending and are being investigated by the Commission.  The action sought to block the company from providing incentives to participate in its wellness program, one of which includes a biometric screening component.  Notwithstanding the consistency of the program with the ACA, Lopez alleged violations of the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act.  Lopez proceeded with the case even though the Commission has yet to issue long-awaited guidance on wellness programs.  The Association's letter to the Commission noted the inconsistency of Lopez's actions with the goals of the ACA to "extend and encourage these programs in an effort to enhance employee health while reducing overall healthcare spending."  Our letter noted:

For years, employers have been seeking guidance from the EEOC regarding how the ADA and GINA apply to wellness programs.  In the interim, employers have complied in good faith with current law and regulations governing wellness programs, including HIPAA’s wellness program rules and the ACA.  Proceeding with legal action under the ADA and GINA before providing any guidance on when a financial incentive turns a voluntary wellness program into an involuntary program puts the cart before the horse, and is simply no way for an enforcement agency of the federal government to conduct business.  If anything, the EEOC should seek to ensure that employers know what the rules are before proceeding with costly litigation and reconcile the ADA and GINA regulations with HIPAA and ACA in a way that encourages the adoption and expansion of wellness program incentives, rather than take positions that are clearly contrary to Congressional intent.

On November 13, the Senate HELP Committee will hold a hearing on the renomination of Lopez as well as that of EEOC Commissioner nominee Charlotte Burrows.  HR Policy will urge the Committee to explore Mr. Lopez's actions on wellness programs before proceeding with his nomination.