ERIC Urges EEOC to Adopt Rules that Foster Workplace Wellness Programs

May 8, 2013

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ERIC News Release

For Immediate Release:  May 8, 2013

Washington, D.C. – Testifying today before the Equal Employment Opportunity Commission (EEOC), The ERISA Industry Committee (ERIC) strongly encouraged the agency to adopt guidance making clear that incentive-based workplace wellness programs are permissible in order to allow these programs to expand and succeed.  Amy Moore of Covington & Burling LLP testified on behalf of ERIC.

ERIC believes that an effective workplace wellness program is one of the few programs that can reduce future health care costs while simultaneously providing tangible benefits to employees and employers alike. Indeed, “workplace wellness programs have proved effective in containing health costs, reducing disability claims, and improving workers’ productivity,” Moore testified.  She further noted that, “Employees value these programs, and they benefit from the programs’ emphasis on promoting good health and addressing health problems before the problems become more serious and more costly to treat.”

Among ERIC’s key recommendations is for the EEOC to make clear that wellness incentives do not violate the Americans with Disabilities Act (ADA).  The testimony explains that the Affordable Care Act (ACA) and the Health Insurance Portability and Accountability Act (HIPAA) permit incentives for voluntary workplace wellness programs, subject to certain limits and other requirements, but the EEOC so far has not embraced this policy.  ERIC is concerned that the EEOC might construe a workplace wellness program to be in violation of the ADA even if the program fully complies with the ACA and HIPAA.

ERIC urged the Commission to issue guidance making clear that a wellness program operated in compliance with the HIPAA standards also will satisfy the ADA.  “Since Congress has determined that an incentive up to 30 percent of the annual cost of coverage does not prevent a wellness program from being voluntary for purposes of HIPAA, the Commission should acknowledge that the same incentive does not prevent a wellness program from being voluntary for purposes of the ADA,” Moore argued.  “The Commission should also confirm that an incentive is permissible under the ADA regardless of whether it is presented as a reward or as a penalty,” she added.

ERIC further urged the EEOC to revise current regulations under the Genetic Information Nondiscrimination Act (GINA) to allow employers to offer incentives to provide family medical history.  ERIC urged the Commission to reconsider its earlier interpretation, contending that the Commission’s position prohibiting an employer from offering employees a financial incentive to provide family medical history in a health risk assessment is not necessary to carry out the purposes of GINA and severely impairs the effectiveness of workplace wellness programs.

Moore also encouraged the Commission to issue guidance clarifying that employers may offer incentives to encourage employees’ spouses to provide information about the spouses’ own medical history, noting that ERIC members have become concerned that the Commission will interpret Title II of GINA to prohibit spousal incentives.  “If employers are forced to remove spousal incentives from their workplace wellness programs in order to avoid the risk of enforcement action, the effectiveness of the programs will be diminished,” she noted. 

The testimony explains that Title II of GINA allows employers to offer incentives that encourage spouses to provide their own health information, as long as the employer protects the information from disclosure and uses the information only in a manner that is permissible under GINA.  ERIC believes that the Commission’s current regulation interpreting Title II of GINA support this view and urged the Commission to issue guidance clarifying this point.

ERIC’s testimony can be accessed by clicking on the link below:

ERIC Testimony Before EEOC