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Is Your Wellness Program Really Voluntary?

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Many employers have wellness programs, which can help rein in some health-care costs and improve productivity. The programs, however, must not violate the Americans with Disabilities Act (ADA), and they must be truly voluntary.

Many wellness programs include obtaining information from employees, and/or having them undergo a health risk assessment. If, however, employees face dire consequences for not submitting to such assessments or inquiries, the program may not be voluntary.

In one case, according to the Equal Employment Opportunity Commission (EEOC), a company’s wellness program was not voluntary because it penalized an employee when she declined to participate. As a result, the company shifted responsibility for payment of the entire premium for her employee health benefits to her. Shortly thereafter, she was fired. Therefore, the EEOC indicates that the company interfered with the employee’s exercise of her right not to be subjected to unlawful medical exams and disability-related enquiries, and it retaliated against her because of her objections to the wellness program.

In another case, an employee failed to submit to biometric testing and a health risk assessment, resulting in the cancellation of his coverage and shifting the full premium payment to the employee, along with disciplinary action.

An attorney for the EEOC indicated that wellness programs cannot compel participation in medical tests or questions that are not job related and consistent with business necessity by cancelling coverage or imposing enormous penalties such as shifting the entire premium payment to the employee if the employee does not participate. Such penalties undermine the voluntariness of such programs.

Notably, the EEOC has never published guidance for employers on how to implement wellness programs, despite issuing a press release on May 8, 2013, titled, “Employer Wellness Programs Need Guidance to Avoid Discrimination.” The Affordable Care Act (ACA) had revised the Health Insurance Portability and Accountability Act (HIPAA) to allow wellness participation incentives up to 30 percent of the total premium (not just the portion paid by the employee) and up to 50 percent for non-tobacco users.

In the meantime, you may want to verify that any incentives are within the permissible limits and prepare for potential employee inquiries regarding your incentives. Some employers have issued statements outlining the incentive amounts under their health plans and indicating that the plan complies with HIPAA and the ACA.

For more information about workplace wellness programs, contact Stacey Bruce at 814/833-3200, 800/815-2660 or sbruce@mbausa.org.