June 10, 2013

The Intersection of Title VII and Wellness Programs: A Roadmap is Needed

Due in part to rising health care costs, and in part to Americans’ health status, wellness programs are becoming an ever more important part of a health plan.  One of the outstanding questions remains, How can a wellness program be designed to be nondiscriminatory?  

Both the HIPAA law and the Affordable Care Act provide guidelines specifically relating to health status nondiscrimination and the design of compliant wellness programs (see the CBIZ Health Reform Bulletin, Final Rules Issued - Incentives for Nondiscriminatory Wellness Programs in Group Health Plans, 6/3/13).  Equally important are questions about how to ensure that a wellness program is compliant with Title 7 of the Civil Rights Act including, but not limited to, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the impact of the Genetic Information Nondiscrimination Act of 2008 (GINA) on wellness programs.

On May 8, 2013, the Equal Employment Opportunity Commission (EEOC) hosted a meeting to gather information on how to ensure that wellness programs comply with various discrimination laws.  One of the outstanding questions has been and remains, what constitutes “voluntary” collection of medical information? 

As background, the ADA permits the collection of medical information by a bona fide health plan as long as it is voluntary and not a subterfuge or a way to avoid the protections of the ADA.   The EEOC has not provided formal guidance on this matter; however, issued two informal opinions.  In an opinion rendered in March, 2009, the EEOC contemplated the scenario of participation in the health plan being contingent upon completing a health risk assessment. According to the EEOC, this kind of arrangement violates the ADA. Making eligibility for health coverage contingent upon completing a health risk assessment is an impermissible use of medical information, in contravention of the ADA.

In August, 2009, the EEOC issued a second informal opinion letter relating to the use of a health risk assessment as a condition of receiving a contribution to an employer-sponsored health reimbursement arrangement. The required health risk assessment asked a series of over 100 questions, including family health history, self-care, personal health, women’s health, nutrition/health choices, physical activity, and alcohol and tobacco usage, many of which were determined by EEOC to be disability-related. The EEOC concluded that these questions were not job-related, nor justifiable as a business necessity. Disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program. A wellness program is considered ‘voluntary’ if employees are neither required to participate nor penalized for non-participation.

On January 18, 2013, the EEOC issued another informal discussion letter which affirmed its position that reasonable accommodations must be made to ensure that an individual protected by the ADA can comply with the wellness program (see Wellness and the EEOC – No Clear Answers Yet,  Benefit Beat, 4/11/13).  The letter addresses that a diabetes management program pursuant to which an individual who achieves certain diabetes related standards would received a wellness reward. The letter makes it clear that if an individual’s disability makes it impossible to achieve the goal, an alternative must be made available.  The letter does not, however, address one of the burning questions and that is what constitutes a voluntary program.

Until guidance is forthcoming, a good faith effort will have to be made to ensure that the wellness program does not run afoul of these rules.  Plan administrators will anxiously await the outcome of this meeting.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

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