In an informal letter, an Equal Employment Opportunity Commission (EEOC) staff attorney has discussed the implications under the Americans with Disabilities Act (ADA) of providing greater benefits to employees who meet wellness program requirements. The letter does a good job of restating the ADA’s statutory requirements related to voluntary wellness programs and reasonable accommodation obligations.
The letter addressed a plan offered to eligible employees (e.g. employees with diabetes) on a voluntary basis, which waives the plan’s annual deductible if the employee meets certain requirements, such as enrollment in a disease management program or adherence to a doctor’s exercise and medication recommendations.
The attorney opined that the EEOC believes the program described would be considered a wellness program. The letter stated that a wellness program encourages employees to lead healthier lifestyles and reduce their risk of disease. The letter went on to say that wellness programs may include, for example, disease management programs, smoking cessation programs, or case management programs. In order to participate in a wellness program, employees may be asked to complete a health risk assessment (HRA) or undergo medical testing or screening. A condition of participation often is that employees disclose that they have qualifying health conditions, which would be a disability-related inquiry, and other disability-related inquiries or medical examinations would be required to determine continued eligibility for any incentive offered.
The ADA strictly limits when an employer may make disability-related inquiries of employees or ask them to take medical examinations. Disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program. A wellness program is voluntary as long as an employer neither requires participation nor penalizes employees who do not participate.
The EEOC has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary.
If a wellness program is voluntary and an employer requires participants to meet certain health outcomes or to engage in certain activities in order to remain in the program or to earn rewards, it must provide reasonable accommodation, absent undue hardship, to those individuals who are unable to meet the outcomes or engage in specific activities due to a disability. Assuming the program is voluntary and an employee is unable to meet the requirements because of a disability, the employer would need to provide a reasonable accommodation to allow the individual to participate in the plan and to earn whatever reward is available.
An individual would then receive the same benefits available to other employees, i.e. the “standard” plan. If a plan is voluntary and persons who are unable to meet the plan requirements because of a disability are given reasonable accommodations, the letter says it would not be unlawful to remove an employee from the “higher benefit” plan for failing to meet requirements, as long as he or she remained eligible to participate in the employer’s standard benefit plan.
Unfortunately, the letter does not give any new guidance as to whether rewards will cause a wellness program to be considered involuntary. Some employers have been reticent to implement incentives in the absence of such guidance.