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The U.S. Equal Employment Opportunity Commission is attempting to limit employers' ability to establish wellness programs, even if the programs comply with requirements under both HIPAA and the Affordable Care Act and even if the programs are effective in controlling health care costs.  And it's doing so in apparent disregard of a specific applicable statutory exception under the Americans with Disabilities Act.

 

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In late August the EEOC filed suit against a Wisconsin employer alleging that the employer's participatory-only wellness program violates the ADA.  This employer required employees to complete a health risk assessment (HRA), including a blood sample, and a "fitness test" using a range of motion machine on the employer's premises.  The employer paid 100% of the cost of group health coverage for any employee who completed the HRA.  An employee who did not complete the HRA was required to pay 100% of the cost of his or her group health coverage.  An employee who did not complete the fitness test was charged an additional $50 per month penalty.  The EEOC's complaint doesn't indicate whether the results of the HRA or fitness test were kept confidential; however, nothing in the EEOC's complaint indicates that an employee's cost for group health coverage or the $50 per month penalty were in any way affected by the results of the HRA or the fitness test.

 

(In this particular case, the employer didn't do itself any favors by terminating the one employee who refused to take the HRA or the fitness test and also raised objections to both with the employer.)

 

The EEOC claims that the HRA and fitness test both violate the ADA's prohibition on medical examinations and disability-related inquiries that are not job-related, consistent with business necessity, or voluntary.  While the ADA does include these prohibitions, the ADA also explicitly provides that these ADA prohibitions do not apply to an employer in connection with establishing, sponsoring, observing or administering the terms of a bona fide benefit plan (whether fully insured or self-insured), unless the plan is a subterfuge for avoiding the purposes of the ADA.  In fact, the same ADA challenge to another employer's participatory-only wellness program (with a less expensive penalty for non-participation) was defeated in 2012, when the Eleventh Circuit Court of Appeals affirmed a U.S. District Court decision holding that the ADA's bona fide plan exception applied to the participatory-only wellness program.  But the EEOC's filing in the Wisconsin case doesn't even mention the bona fide plan exception.

 

If the Eleventh Circuit case is followed, the Wisconsin employer's penalty for refusing the HRA (requiring the employee to pay 100% of the cost of group health coverage) should qualify for the ADA bona fide plan exception, because it is arguably a term of the group health plan governing the amount to be paid by the employee.  However, the additional $50/month penalty for refusing the fitness test does not appear to qualify, because there is no apparent connection to the group health plan.  The Wisconsin employer might not prevail on the permissibility of the fitness test (and the related penalty), and the employer's termination of the employee for objecting to the fitness test.

 

Employers using wellness programs to encourage better employee health should be aware of the EEOC's action, but should not feel compelled to end those wellness programs just yet.  Careful attention needs to be paid to making sure wellness programs comply with the HIPAA and ACA requirements, and that wellness programs are clearly referenced in the group health plan documents, SPDs, and employee communications.  It's also critical that any health information disclosed in connection with a wellness program be properly protected as required by HIPAA; in general, all health information derived from wellness programs should only be disclosed to, and should be kept confidential by, a third party (subject to a HIPAA Business Associate Agreement) unless the employer has a genuine, ADA-permissible need for access to that information.  Finally, any health risk assessments or other health-related questionnaires used in wellness programs should be scrubbed of any requests for genetic information (such as questions about the medical history or health condition of any family members); there is no bona fide plan exception to the prohibition on requests for genetic information under the Genetic Information Nondiscrimination Act.

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