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 lexis.com
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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