Does your Employer’s Wellness Program Violate the Americans with Disabilities Act (ADA)?

Does your Employer’s Wellness Program Violate the Americans with Disabilities Act (ADA)?

What is a Wellness Program?

The federal Equal Employment Opportunity Commission defines “wellness program” as:

programs and activities typically offered through employer-provided health plans as a means to help employees improve health and reduce health care costs

Some wellness programs ask employees to engage in healthier behavior (for example, by becoming more active, not smoking, or eating better), while other programs obtain medical information from employees by asking them to complete a health risk assessment (HRA) or undergo biometric screening for risk factors (such as high blood pressure or cholesterol).

How are Wellness Programs Affected by Title I of the Americans with Disabilities Act?

Title I of the Americans with Disabilities Act prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against employees because of employees’ disabilities. So, Title I of the ADA prohibits these entities from implementing wellness programs that discriminate based on disabilities. Specifically, the ADA prohibits these entities from collecting medical information from employees - even in the context of wellness programs - unless the employees’ participation in the program is truly voluntary.

When Does Participation in a Wellness Program Become Involuntary?

According to the EEOC, an employer may not:

• require participation in the program
• deny access to health coverage or generally limit coverage under its health plans for non-participation; or
• take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees.

May an Employer Offer Participation Incentives to Employees?

The EEOC has issued a notice of proposed rulemaking that addresses employer incentives for employee participation. The proposed rule - open for public comment until June 19, 2015 - would allow an employer to pay an employee for attaining certain health outcomes or penalize an employee for not participating in a program. The rule allows a payment or penalty of 30% of the total cost of employee-only coverage. If you have concerns about the design or implementation of your employer’s wellness program, the attorneys of Hawks Quindel, S.C. may be able to assist you with determining whether the plan complies with anti-discrimination laws.