Is your wellness program illegal according to the EEOC?

by Michael Haberman on November 10, 2014 · 0 comments


Company employee wellness programs may have problems with discrimination declared the EEOC.

Company employee wellness programs may have problems with discrimination declared the EEOC.

With pronouncements such as “sitting is the new smoking” and the surge in Type II diabetes, wellness programs have become very popular today. Many companies see multiple benefits to wellness for both the employee and the company. But there is a dark side to these plans declares the EEOC and they have declared some plans illegal.

Benefits of wellness programs

Helping employees be aware of the state of their health has both a benefit to the employee and to the company. Employees who are aware are more likely to take care of their health. Weight loss, disease control, proper medication, good living habits can all result in a happier, healthier employee with increased life span. The benefits for the company are reduced healthcare costs, reduced absenteeism and its resultant cost, and employee who are generally more productive. It seems like a win-win. In addition, employees who participate also get a reduction in their insurance premiums.

Current prohibitions

GINA, the Genetic Information Non-discrimination Act, prohibits the collection of health related information that may reveal a genetic condition. I wrote about that in a post called OOPS Can’t Ask That: The Impact of GINA At Work. Basically GINA prohibits collecting any genetic information, such as family heath history, if a financial reward is contingent on participation. The submission of such information can only be voluntary and cannot be tied to some reward.

EEOC prohibition

Now in addition to GINA the EEOC has declared that some wellness plans violate the ADA (Americans with Disabilities Act). The Equal Employment Opportunity Commission has filed lawsuits against to Wisconsin firms for having plans that they feel directly violates the ADA.

Both plans require employees to participate in the wellness screening. Both plans took a punitive approach in encouraging participation. Rather than reward employees for participating they punished those who refused. The employees who refused to participate had to pay the full insurance premium, versus a reduced premium for those who did. In addition, one company also terminated the employee who refused to participate.

EEOC reasoning

The EEOC says that wellness programs can be a good thing, but to be legal they must be voluntary and non-punitive. According to  John Hendrickson, regional attorney for the EEOC, “…they have to actually be voluntary. They can’t 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 100 percent of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries on the one hand, or getting hit with cancellation or a penalty on the other hand, is not voluntary and not a choice at all.” They also declared the termination of one employee to be retaliation.

What to do?

Unfortunately for companies with wellness programs there currently is no guidance from the EEOC on what is needed to be done to insure that their programs are legal in the eyes of the EEOC. We will have to wait for the outcome of these to court cases to see. However, I would suggest the following steps:

  1. Make sure your plan is voluntary. Don’t force employees to participate by punishing them for non-participation. Rewards work much better than punishment, which is true in all aspects of dealing with people.
  2. Don’t terminate people for non-participation. That is going to do nothing but upset them and may be likely to bring the attention of the EEOC down on your company. Plus, to be honest, it is just stupid HR.
  3. Make sure you are complying with the GINA prohibitions on wellness plans. That is also under the guidance of the EEOC.

Wellness is supposed to have the goal of making everyone healthier and more productive, but you cannot and should not force it down peoples’ throats.

Image courtesy of Ambro at FreeDigitalPhotos.net


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