Avoiding Discrimination in Organizational Wellness Programs
A panel of experts met with the U.S. Equal Employment Opportunity Commission (EEOC) to discuss employer wellness programs in a meeting last week that was open to the public. Panelists urged the Commission to issue official guidance on how to avoid discrimination in organizational health and wellness programs; specifically regarding the American with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Guidance from the EEOC on discrimination issues would make it easier for employers with wellness programs to comply with GINA, the ADA, the Health Information Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA).
Discussion points addressed during the meeting included the urgency to officially define “voluntary” participation in wellness programs and the need for employers to provide reasonable accommodation and adjustment of standards (or waivers) in wellness programs for disabled persons, as well as the consideration of employees protected by the Age Discrimination in Employment Act (ADEA). Also discussed was the need for EEOC guidance on whether employees’ spouses should be asked for health information under an employer’s wellness program and how this would be protected under GINA.
As panelist Leslie Silverman, a partner with Proskauer Rose, LLP and former EEOC vice chair put it, “Wellness programs as a component of employer-sponsored health insurance are here and here to stay.” According to recent research by Aon Hewitt, 83 percent of organizations surveyed offer employees incentives for participating in wellness programs. Nevertheless, since employers still have questions about incentives and financial penalties, guidance from the EEOC may help organizational leaders, HR and benefits specialists structure reward systems in a way that ensures equal opportunity for all employees and avoids disparate impact.
Fifty-nine percent of organizations recently surveyed by Towers Watson expressed interest in expanding financial incentives to include employees’ spouses by 2014. Although including spouses in wellness programs can be an effective way to engage employees and family dynamics are an important factor to overall health and sustainable behavior change, organizational leaders and managers still have questions about the legal ramifications of collecting health information from employees’ spouses. Panelists asked the EEOC to weigh in on this.
Jennifer Mathis, deputy legal director for the Bazelon Center for Mental Health highlighted an important take away for organizational leaders – when it comes to wellness programs, ensure that your communications reach all employees, including those with disabilities who may require alternate forms of communication, such as American Sign Language. This key point underscores the tenet of our healthy workplace model – in order to be effective, it’s important to consider the specific needs and preferences of your workforce and tailor communications accordingly.
After testimony and rounds of questioning from the Commission to the panelists, the meeting concluded with Commissioner Chai Feldblum of the EEOC stating that “not having clarity and certainty from the EEOC is not fair to either employees or employers” and that this meeting was the beginning of a process. Feldblum further stated that she believes “it is an obligation on the EEOC as [they] interpret laws to be cognizant of the entire body of law that’s out there, even if that’s not an easy situation.” It is now up to the EEOC to decide whether or not to issue guidance with regard to employer wellness programs and discrimination issues.
Click here to read a Society for Human Resources article about a recent case (Seff vs. Broward County) mentioned by Mathis in the meeting, about an employee who sued their employer over participation in a wellness activity. You can also access more information about the EEOC meeting, including the video recording and panelists’ written testimonies on the EEOC website. Written comments can be submitted to firstname.lastname@example.org (please note that all comments submitted may be made public, so do not include any personal information you do not want posted on the EEOC website).
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