"Voluntary" wellness programs -- seeking answers from the EEOC

After having expressed concern (here and here) that penalizing employees for not participating in "voluntary" wellness programs may render the programs . . . er . . . involuntary*, my view was somewhat vindicated this week by Rep. Louise M. Slaughter (D-NY) in a letter that Rep. Slaughter sent to the Equal Employment Opportunity Commission.

*Under the Americans with Disabilities Act, an employer is generally prohibited from requesting medical information from current employees unless the request is "job-related and consistent with business necessity." The ADA has an exception for medical information gathered in connection with voluntary wellness programs. If the wellness program is not "voluntary," then this exception would not apply.

Rep. Slaughter's website and her letter say that she was the author of the original Genetic Information Nondiscrimination Act, which prohibits the acquisition or disclosure of "genetic information" as defined in that law. As we have discussed previously, "genetic information" includes not only genotypes and DNA tests but also garden-variety information about family history (e.g., "has anyone in your family died of a heart attack?" "does anyone in your family have skin cancer?").

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The Congresswoman expressed concern about a wellness program at Penn State University that required employees to provide personal medical, mental health, and lifestyle information in connection with the University's wellness program. Employees who refused to participate were going to be charged $100 a month beginning in January. After a revolt led by two faculty members and the ensuing negative media attention about this, Penn State suspended the penalty for non-participation.

Although she admitted that she did not know whether Penn State had actually violated the GINA, Rep. Slaughter said that wellness programs that solicited personal medical information and penalized non-participation were "rife with the potential for such abuse" and urged the EEOC to take a position on the issue.

You may recall that the U.S. Court of Appeals for the Eleventh Circuit* ruled in 2012 that financial penalties for non-participation in a Broward County, Florida, wellness program did not violate the ADA because of an exception in the ADA that applied to group health insurance programs. As far as I know, this decision and the lower-court decision that was the basis for the appeal are the only court rulings on the subject.

*The Eleventh Circuit hears appeals from federal courts in the states of Alabama, Florida, and Georgia.

The EEOC is generally simpatico to wellness programs and, although having recognized that there is a "voluntariness" question when an employee is rewarded for participating or penalized for not participating, has never taken a clear position.

If Rep. Slaughter gets her way, the EEOC will do so and will find that penalties for refusal to disclose genetic information in connection with a wellness program violate the GINA. She also implies that penalties might render the wellness program "not voluntary," which would mean the program would also violate the ADA assuming the group insurance exception did not apply. And, perhaps, invade employees' privacy.

I agree with Rep. Slaughter that some specific guidance from the EEOC would be helpful and appreciated. But now that the government is getting into health insurance in a big way, will the EEOC want to limit access to individuals' health information?

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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