Does Your Health Wellness Program Violate The ADA?

October 26, 2016 at 9:47 am Leave a comment

exercise-at-your-desk-600x400-thumb-599xauto-322336Here is a post for your HR people to take a look at.

With employers pulling out their hair trying to control increasingly high health care costs, health wellness programs that incentivize employees to adopt healthier lifestyles in return for lower healthcare premiums have grown in popularity. Critics have argued that, depending on the incentives provided in these wellness plans, employers could be violating the American’s with Disabilities Act, which bans discrimination against employees on the basis of their disability, as well as the Genetic Information Non Discrimination Act, which bans discrimination based on medical history. This dispute is going to be resolved once and for all as a result of a lawsuit filed on Monday by the AARP.

Many health wellness programs are coupled with health screenings that require employees to disclose personal medical information and medical history. No one disputes that employees can choose to voluntarily provide this information, but critics argue that the incentives provided to participants are so large that they essentially coerce employees into participating. In May of this year, the EEOC issued regulations which authorize incentives worth up to 30% of the cost of the cheapest healthcare plans to employees who agree to participate in wellness plans that include screenings starting in January.

On Monday the AARP filed a lawsuit in the District of Columbia seeking an injunction against the EEOC’s rule (complaint) It argues that a 30% incentive, which can also be applied to a participating spouse, is so large that it will “coerce many of AARP’s members to surrender theirs and their spouses’ information.” It wants the court to freeze the regulation so that healthcare plans cannot start implementing 30% incentive.

The case will provide guidance on what will inevitably be a tricky balance between encouraging employees to get healthy and discriminating against those for whom exercise just isn’t their thing. Even if you don’t offer, or plan to offer wellness programs that include a screaming component, the case provides another example of how regulators and, increasingly, the courts are the only  policy makers on the national level. Hopefully, no matter who wins the election Congress will actually start passing meaningful laws again. Somehow I doubt it.

Entry filed under: HR, Legal Watch. Tags: .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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