The Equal Employment Opportunity Commission has announced plans to issue proposed regulations on the impact the Americans with Disabilities Act (ADA) has on employee wellness programs. The EEOC has aggressively targeted these programs, filing a string of lawsuits against organizations for having “involuntary” wellness programs that conflict with the ADA and Genetic Information Nondiscrimination Act. The EEOC’s case against Honeywell has received a lot of attention.
Under Honeywell’s wellness program, employees and their spouses undergo blood tests for cholesterol, glucose, and nicotine use, and have their body mass index and blood pressure measured. Any employee who refuses is hit with a $500 surcharge on health insurance and could lose up to $1,500 in Honeywell contributions to a Health Savings Account. Under the ADA, medical testing as part of a wellness plan must be voluntary, and according to a recent EEOC press release, “The employer cannot require it or penalize employees who decide not to go through with it.” Because Honeywell International’s program was involuntary, the EEOC argues, the disability-related inquiries and medical examinations within the program—which could reveal lifestyle and health issues of employees and their spouses—violate the ADA.
Under the ADA, employers “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Employers may, however, ask employees about their health and conduct exams as part of a voluntary wellness program. Employers, patient advocates, and policy experts want the EEOC to clarify what “voluntary” means under the ADA and how the Affordable Care Act (ACA) and ADA relate with respect to wellness programs and financial incentives.
The lawsuit also alleges Honeywell’s program violates GINA by inducing employees to provide their family medical history. According to the EEOC, by penalizing an employee if the employee’s spouse does not participate in the program’s biometric screening, which could yield information related to such conditions as hypertension and diabetes, the program is providing a financial inducement to obtain genetic information (i.e., family medical history).
The limited guidance on the issue and a lack of clarity from the federal government have made it difficult for employers to implement wellness programs with any confidence that they are compliant with all relevant statutes and regulations.
New Fiduciary Rule is Priority No. 1
The need to update and strengthen the current fiduciary rule so that plan sponsors and individuals saving for retirement are better protected from advisor conflicts of interests is reported as the top priority for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). Many plan sponsors, particularly those of smaller plans, complain about not fully understanding their responsibilities to the plan and to the employee investors. The DOL provides extensive education to help plan sponsors understand their obligation under the law in the form of publications, live seminars, regular webcasts, field office guidance, and regional workshops.
HR and benefit professionals can look forward to an upcoming guide for service providers that will encourage a more uniform manner for disclosing information to plan sponsors.