During a January 29th hearing of the Senate Health, Education, Labor and Pensions (HELP) Committee, testimony was presented on employer wellness programs. These programs, which are encouraged under the Affordable Care Act, allow companies to reward employees for participating in workplace wellness programs, which may require them to answer questions about health status to help them achieve certain health goals like smoking cessation or weight loss. The law, however, requires that the programs be voluntary and conform to nondiscrimination laws such as the Americans with Disabilities Act (ADA). Under Title I of the ADA, an employer cannot require its employees to undergo medical exams or answer health and/or disability-related questions unless doing so is “shown to be job-related and consistent with business necessity” or part of a “voluntary employee health program.”
Part of the testimony during the hearing focused on concerns about potential discrimination of workers with disabilities and other ADA compliance issues in the implementation of wellness programs. For example, some employers may tie a significant portion of employee compensation or the employer’s health insurance premium contribution to participation in the wellness program, effectively rendering the program involuntary. This may have a particularly adverse impact on employees with disabilities who do not wish to complete health information surveys that would reveal their disability-related information. Employees with disabilities may also need to be provided with a reasonable modification to health benchmarks if, because of the nature of their disability, the benchmark is not possible or medically advisable. U.S. Senator Patty Murray (D-Wash.) urged the Equal Opportunity Commission (EEOC) to clarify what constitutes a “voluntary” wellness program.