Helping Employees Become Healthier: Rewards or Penalties and the EEOC

The Detroit Free Press had an article this week concerning employers who offered insurance policies to employees that reward them for healthier living.  One employer offered a Blue Cross plan with no deductibles or co-pays for employees who participate in a yearly on line health risk assessment and who try to meet goals for weight, smoking, and cholesterol levels.  Employees who do not participate in the health assessment and who do report on personal goals have a yearly deductible of $ 1500.

In May of 2011, a federal court in Florida held  that a requirement of a group health plan for employee participation in a health risk assessment  and screening or incur a $ 20 per biweekly surcharge for failure to do so was valid under the ADA's "safe harbor" provision for bona fide benefit plans.  The employer had originally intended that employees be given a $ 20 credit for employees  participating in the assessment and screening, but found that it would be too difficult to do so. The case is being appealed.

Is there any reason for employers to not move ahead with programs similar to those identified in the Free Press article?  Yes.  The EEOC has not taken a definitive position on whether or what extent Title I of the ADA allows financial incentives for participation in wellness plans.  This issue was not addressed in the court's decision.

In an informal discussion letter dated March 9, 2009, a representative of the EEOC addressed the issue of whether an employer can require employees to participate in a health risk assessment as a condition for participating in the employer's health insurance plan.  In an earlier letter dated January 6, 2009, another representative had taken the position that the plan would be in violation of the ADA.  The letter stated that a wellness program is considered voluntary and can seek information concerning physical conditions as long the employee is neither required to participate nor penalized for not participating.  The March 9 letter withdrew the January 6th letter discussion of permissible incentives.  It stated:  We said that a wellness program would be considered voluntary and any disability-related inquiries or medical examinations conducted in connection with it would not violate the ADA, as long as the inducement to participate in the program did not exceed twenty percent of the cost of employee only or employee and dependent coverage under the plan, consistent with regulations promulgated pursuant to the Health Insurance Portability and Accountability Act ("HIPAA").  This part of the letter was withdrawn on the basis that it answered a question not asked.

The EEOC issued another informal discussion letter dated August 10, 2009.  The letter was in response to an employer which had submitted a copy of a health risk assessment and which required its employees to complete the assessment as a prerequisite to obtaining reimbursement for health expenses.  The representative stated that requiring employees to complete the assessment which includes disability related questions as a prerequisite to reimbursement does not appear to be job related or consistent with business necessity.

In an informal discussion letter dated June 24, 2011, the agency was asked to state that offering incentives as part of a wellness plan was not a violation either the ADA or GINA.  With respect to allowing incentives under the ADA, the representative stated:  As you know, the Commission has not taken a position on whether, and to what extent, Title I of the ADA permits an employer to offer financial incentives for employees to participate in wellness programs that include disability-related inquiries (such as questions about current health status asked as part of a health risk assessment) or medical examinations (such as blood pressure and cholesterol screening to determine whether an employee has achieved certain health outcomes). However, we will carefully consider your comments and the comments of other stakeholders that we have received on this important issue.  With respect to the issue of incentives under GINA, the spokesperson stated:  We are not in a position to offer an interpretation of the example in the GINA Title I regulations, since EEOC does not have responsibility for enforcing Title I. However, our goal in formulating the position on wellness program incentives and the examples in our Title II regulations was to be consistent with the positions taken by the Title I agencies (with which we coordinated extensively while developing our final GINA regulations).

So, what is voluntary?  What is a reward?  What is a penalty?  Until the EEOC provides substantive guidance, employers have to take into account its position on the issues of voluntary participation  and what is an impermissible penalty, employers have to be aware of the risks involved.  Is charging an employee a deductible  because the employee refuses to participate in a health risk assessment a penalty?  What if the employer in the Florida case had given a credit rather than imposed a surcharge?  For the benefit of all employers who are legitimately concerned about their employees' health and their own costs of insurance, the EEOC needs to take a position.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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