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Thursday, April 2, 2015

Trending: Employer Wellness Programs Must Preserve Workers’ Nondiscrimination Rights

Lydia Mitts

Former Associate Director of Affordability Initiatives

UPDATE (July 2015): Families USA submitted comments on the EEOC’s proposed rule concerning the ADA’s application to wellness programs. Among other concerns, Families USA expressed strong opposition to a policy allowing employers to penalize employees for nonparticipation in certain medical exams or inquiries associated with the employer’s wellness program. Read our full comments.

Each month, we weigh in on selected news stories and trending debates that are shaping the direction of health care policy.

While finding ways to support employees’ health is a laudable goal, some employers have designed wellness programs that penalize employees for failing to meet certain health outcomes, complete certain medical screenings or questionnaires, or fulfill other requirements under the program. Developments in recent months—including lawsuits against employer-run wellness programs filed by the Equal Employment Opportunity Commission (EEOC)—add to concerns that these programs can violate workers’ rights under the Americans with Disabilities Act (ADA). It is critical that employers design workplace wellness programs that comply with nondiscrimination laws and that future policymaking continue to give employees full protection under the ADA.

EEOC sues three wellness programs for not complying with the ADA

Last fall, the EEOC—the federal body in charge of enforcing laws protecting against workplace discrimination—took legal action against three employer-run wellness programs for violating critical protections under the ADA. These programs charged employees significant penalties—in one case thousands of dollars in additional health insurance costs—for failing to complete disability-related inquiries (i.e., questions likely to elicit information about a disability) or medical exams. This is a direct violation of the ADA, which forbids employers from requiring employees to complete such inquiries or exams that are part of a wellness program. 

Some business groups have vocally opposed the EEOC’s actions against wellness programs, claiming that such penalties aren’t prohibited under the ADA.  

Members of Congress have also responded with legislation that would undercut this core protection of the ADA, as well as other nondiscrimination laws that currently apply to wellness programs. 

The EEOC will soon release proposed regulations to provide greater clarity about this issue and whether penalties for not completing medical inquiries are allowed in wellness programs. 

Two reasons why future policymaking on this issue should restrict the use of penalties in wellness programs  

Employers truly committed to building wellness programs that actually support their employees’ health and well-being can do so without penalizing employees who do not wish to complete medical inquiries and without violating the ADA.

1. Limits on an employer’s ability to make medical inquiries protect employees from discrimination: 

The ADA doesn’t allow employers to ask employees for any disability-related information or ask them to undergo a medical exam unless the information is directly related to the job or is a voluntary request for information under a health promotion or wellness program. 


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This important restriction on an employer’s ability to make medical inquiries is based on past abuses. There is a long history of some employers gaining medical information about employees and using it to discriminate against people with disabilities. 

Wellness programs may include medical questionnaires that ask invasive questions regarding personal health matters or invasive medical tests (e.g., screenings for glucose levels or blood pressure) that could potentially expose someone’s disability. This is information an employee may not want to share as part of a wellness program and the ADA says employees have a right to keep such information private. 

Allowing employers to penalize employees who choose not to complete such inquiries would severely weaken this ADA protection. Disclosing protected medical information is no longer voluntary when employees are forced to choose between accessing affordable health coverage and protecting their private medical information. This is particularly disheartening in the case of programs with penalties of hundreds or thousands of dollars in additional health care costs: In this situation, the “choice” employees have regarding disclosing protected medical information under a wellness program may be illusory.  

In one of the EEOC cases, for example, an employee who refused the screening was subject to a surcharge of hundreds of dollars on top of his monthly insurance premium.

The EEOC has already recognized this reality and specified in past guidance that penalizing workers who do not complete medical inquiries under a wellness program would violate the ADA. It is important that, moving forward, federal policymaking continue to preserve this right to the fullest extent. 

2. Punitive wellness programs may be used to shift costs to employees

In the midst of this debate, it is important to assess whether programs that strong arm employees into taking part in medical questionnaires or penalize them for not meeting health outcomes actually improve employees’ health. 

We have long been concerned that these punitive wellness programs end up shifting health care costs to employees. The truth is that, as of today, there isn’t good evidence showing that punitive wellness programs improve employees’ health and lower health care costs. Instead, research suggests that these programs can be used simply as a way to shift costs to employees. 

There isn’t good evidence showing that punitive wellness programs improve employees’ health and lower health care costs.

A recent study found that punitive programs that penalize employees for not meeting health outcomes aren’t effective at improving employees’ long-term health or generating health care savings through improved health outcomes. Instead, employers that use penalties tied to health insurance costs may actually be reducing health care costs on their end by shifting costs to employees who cannot meet the wellness requirements. 

Additionally, some employers may establish higher health insurance costs for an employee who does not complete his or her medical inquiries simply to shift costs to employees who are less likely to want to undergo such inquiry, such as those with disabilities. 

These programs may be called “wellness programs,” but the reality is that they can simply be a backdoor way to discriminate against vulnerable employees. 

Employers should design wellness programs that do not penalize employees who wish to keep their medical information private

Shifting costs and making coverage less affordable for workers who need it most is simply not in keeping with supporting employees’ health and well-being. Protections under the ADA should not be weakened to accommodate wellness strategies that are not shown to improve health and open the door wider to employers using wellness programs to shift costs to more vulnerable employees.