Labor and Employment Law

The EEOC and Wellness Programs: Time for an Answer?

The EEOC has announced that it will be holding a meeting on May 8, 2013, to hear from invited panelists on the treatment of wellness programs under federal law, with an emphasis on understanding the ways that the ADA, the Genetic Information Nondiscrimination Act as well as other statutes that the EEOC enforces may be implicated.  The meeting may provide a basis to finally address the issue it has left open since 2000.

In 2000, the EEOC stated that a wellness program is voluntary as long as an employer neither requires participation nor penalizes employees who do not participate.  Since that time, the EEOC has repeated its mantra that it has not taken a  position on whether and to what extent a reward amounts to a requirement to participate, or whether the withholding of the reward from those who do not participate constitutes a penalty, thereby making the program involuntary.

It will be interesting to see if the 11th Circuit decision in Seff v. Broward County  [an enhanced version of this opinion is available to subscribers]is addressed where the issue of the application of the bona fide benefit was addressed by the court in its decision while issue of "voluntariness" was not.  Many employer wellness programs are stand alone and not related to nor a part of group health plan documents.

Employers have enacted programs which may not pass the voluntariness test.  The publicity which CVS Healthcare attracted is a good example of what employers are doing in this area.  A CVS employee who does not participate in a "voluntary" wellness review which collects information concerning blood pressure, body fat, cholesterol, and weight will result in the additional payment of $600 a year for healthcare coverage.

The EEOC is finally taking the first step to answer a question of increasing importance to employers. Employers should not be surprised if the ultimate answer to the question of voluntariness is not what they want.

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

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