New Guidelines Issued for Employer Wellness Programs Under the ADA

This week, the U.S. Equal Employment Opportunity Commission published several new proposed rules, designed to explain how the federal disability discrimination law, the Americans with Disabilities Act (“ADA”), applies to employer wellness programs. The rules provide important guidance for employers and employees in Cleveland workplaces about how to balance the dual goals of protecting the rights of individuals with disabilities and promoting healthy workplaces.

It is becoming increasingly common for employers to adopt employee wellness programs as part of the employer’s group health insurance plan. These programs are designed to encourage employees to adopt healthy lifestyles, thereby preventing disease and keeping insurance costs down. A typical program might offer nutrition classes, onsite exercise facilities, or weight loss or smoking prevention coaching. These programs might also include medical examinations and screenings—for instance, cholesterol, blood pressure, and body weight checks—in order to determine an employee’s health risks. Some employers even offer financial or other incentives to employees who participate in the program or who achieve various health goals.

Because employer wellness programs necessarily revolve around an employee’s health and medical conditions, they can implicate the Americans with Disabilities Act. As a general rule, the ADA limits an employer’s ability to ask employees about their health or force them to undergo medical examinations, “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). However, the ADA has a special exception for voluntary wellness programs, allowing employers to “conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site.” Id. at § 12112(d)(4)(B). The EEOC’s new proposed rules are intended to provide further guidance about what employers can and cannot do under the ADA when implementing wellness programs.

The central aspects of the proposed rules are as follows:

• Wellness programs must be designed to promote health or prevent disease, not to discriminate against employees with disabilities. A permissible employer wellness program must have a reasonable chance to improve health or prevent disease, must not pose an undue burden on employees, and cannot otherwise violate existing provisions of the ADA.

• Wellness programs must be voluntary. Employers cannot require employees to participate in a wellness program. The employer cannot deny insurance coverage, reduce benefits, or otherwise penalize employees if they do not participate. Similarly, employers cannot coerce or threaten employees in order to get them to participate in the wellness program.

• Employers may offer limited incentives for employees who participate. An employer can offer financial incentives to employees who participate in a wellness program or achieve certain health goals. Any incentive, however, may not exceed thirty percent of the total cost for the employee’s own insurance coverage. For instance, if the employee’s self-only health insurance costs $1,000 a month, the incentives cannot exceed $300 a month.

• Medical information collected through a wellness program must be kept confidential. In general, the ADA requires that employee medical information be kept separately from the personnel file, and not be disclosed to the employee’s supervisor except with respect to accommodations and work restrictions. The proposed rules state that when conducting an employee wellness program, employers may collect medical information about the workplace as a whole, but not information that reveals the health conditions of a particular employee. Employers must also provide employees with a notice describing what information will be collected, who will receive it, and how it will be used.

• Employers must provide reasonable accommodations that allow employees with disabilities to participate in a wellness program. The ADA requires employers to make reasonable accommodations to the known disabilities of employees when necessary for the employee to perform the job, unless doing so would pose an undue burden. The EEOC’s proposed rules state that if an employee needs a reasonable accommodation to participate in a wellness program—for instance a sign language interpreter, allowing a deaf employee to participate in a nutrition class—the employer must provide it.

These new rules are not yet the law, and may be revised over the coming months before they take effect. In the meantime, in addition to the ADA, there are several other existing laws that protect employees with respect to their health insurance.

If an employee is fired or otherwise discriminated against because of his or her health insurance costs, Section 510 of the Employee Retirement Income Security Act (“ERISA”) might protect the employee. It is of course true that some employees require more medical care than others. As a result, some employees have higher insurance costs than others for an employer. To avoid those costs, employers might want to fire employees who use their health insurance “too much.” ERISA Section 510 prohibits that. Found at 29 U.S.C. § 1140, it forbids employers from firing employees because they used employer-provided group health insurance (and therefore cost the employer money). It also forbids firing employees in order to prevent them from becoming eligible for group health insurance. Although Section 510 claims can often be intertwined with claims under the ADA, they are an independent protection for employees with health issues.

A relatively new protection for employees comes from the Affordable Care Act. Starting on January 1, 2015, larger employers became subject to a tax penalty if they do not offer qualifying group health insurance to their employees, and at least one employee then receives a credit towards one of the public healthcare exchanges. See 26 U.S.C. § 4980H. When an employer does not offer qualifying insurance, the Affordable Care Act prohibits the employer from retaliating against employees who received a tax credit or subsidy, therefore resulting in a tax penalty to the employer.

Regardless of their final language, the EEOC’s proposed rules have a worthy goal: balancing protection for the privacy and dignity of employees with medical needs, and promoting a healthy society, both of which benefit everyone. Hopefully, the final version will strike the right balance.

If you are an individual with a disability and work in Cleveland, elsewhere in Cuyahoga County, or anywhere in Ohio for that matter, you should understand what your rights are in the workplace with respect to your medical conditions and health insurance. If you think your rights may have been violated, contact the Cleveland employment discrimination attorneys at Bolek Besser Glesius LLC today for a free consultation.