Employee wellness programs have the potential to save money for companies and reduce hospitalizations for employees, so provisions in the Affordable Care Act encourage businesses to implement them. But if those programs include mandatory or incentivized health screenings, they can conflict with another, older federal statute: The Americans with Disabilities Act (ADA), which prohibits employers from requiring workers to hand over health information unless its directly relevant to their job functions.
As reported recently in The New York Times, this conflict is increasingly coming to a head as the Equal Employment Opportunity Commission (EEOC), itself a government body, has sued three different companies in the last two years on behalf of employees required to submit to screenings or face higher premiums if they decline.
In 2014, the EEOC has sued Orion Energy Systems, plastics manufacturer Flambeau, and Honeywell. The Orion suit is still pending and the Honeywell suit, which MobiHealthNews covered at the time, was essentially thrown out: the Federal court in Minnesota declined the motion for injunction but didn’t rule on the merits of the case.
With Flambeau, though, the courts seem to have finally taken a stand, and they ruled against EEOC, following a 2011 Florida precedent. The court said that a safe harbor provision in the ADA protects employers who are “establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks”. The judge ruled that this provision protects employers that collect population-level information about workers, without having access to individual workers’ results.
According to a blog post from the legal firm Ice Miller, the other legal debate around the ADA, which courts have yet to weigh in on, relates to “voluntary” wellness programs, which are also exempt. The debate has mainly been around whether a program qualifies as voluntary if employees who opt out face higher premiums or some other censure.
While the courts are carving out a de facto roadmap for concerned companies, legislative efforts are also underway to clarify the situation. In April 2015, the EEOC published a proposed amendment to the ADA in the Federal Register. The final version is expected this spring, though it’s unclear whether it will make it through Congress.
The Ice Miller post goes in-depth on the proposed rules, but essentially they bring the ADA into alignment with the Final HIPAA Wellness Program regulations, which most companies are already consulting as they design their wellness programs. The one point on which the EEOC rule is stronger is the definition of “voluntary”. Under the proposed EEOC rule, employers would not be permitted to make the completion of a health risk assessment a requirement for participating in a health plan or program.