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Is Your Workplace Wellness Program Discrimination? EEOC Thinks So

Over the last several years, the Affordable Care Act expanded employers’ ability to offer wellness programs at the risk of workplace discrimination. In 2014, companies aimed to improve the health of their employees while reducing health care costs. Rewarding employees for achieving health goals (and lowering company costs) must be carefully weighed against discriminating against those protected under laws such as the Health Insurance Portability and Accountability Act (“HIPAA”), Americans with Disabilities Act (“ADA”), Genetic Information Nondiscrimination Act (“GINA”), and the Age Discrimination in Employment Act (“ADEA”).

The U.S. Department of Labor (“DOL”) estimates that over half of U.S. employers offer some form of wellness program. However, to ensure that these programs are compliant, employers must meet certain requirements. The number and extent of requirements depends on whether the employers administer their own wellness programs or use outside firms. In reality, many efforts fall short and employers gain access to sensitive employee health information creating liability and potential for workplace discrimination. Consequently, the Equal Employment Opportunity Commission (“EEOC”) has stepped up its enforcement by bringing several lawsuits against employers for ADA and GINA discrimination.

An often overlooked component of HIPAA is its non-discrimination provision. This provision prohibits health plans from discriminating against individuals for eligibility or charging more for coverage because of a “health factor.” The DOL describes health factors as (1) health status, (2) medical condition, (3) claims experience, (4) receipt of health care, (5) medical history, (6) genetic information, (7) evidence of insurability, and (8) disability. However, HIPAA does provide a limited exception allowing employers to provide wellness programs and incentives but employers must comply with strict requirements – often failing.

The ADA prohibits employers from discriminating against disabled employees by taking disability-related surveys or requiring that employees undergo medical examinations. Aside from limited exceptions, if the medical examinations are not voluntary or the medical information gained from wellness programs is not kept confidential and separate from employee personnel records, the employer may have violated the ADA. To be truly voluntary, a wellness program cannot require participation nor penalize employees for non-participation. If the employer rewards employees for participation, that may be considered a penalty!

GINA prohibits employers from using genetic information in employment decisions or discriminating due to genetic information when making health care coverage decisions. A common feature of wellness programs is a health risk assessment which can indirectly provide employers with the employee’s medical history – and expose employers to GINA violations.

If you believe that your wellness program violates any anti-discrimination laws, contact the experienced employment law attorneys at Stephen Danz & Associates to discuss your legal options. See these blogs for additional forms of discrimination.