Employers that establish wellness programs and offer financial inducements for employees to participate could find themselves in trouble with the Equal Employment Opportunity Commission under both the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA).
In a letter issued by the EEOC in June, it was noted that while Title I of the ADA allows employers to conduct voluntary medical examinations and inquiries, including obtaining information from medical histories as part of a wellness program, there are certain precautions the employer must take to avoid any potential liability. First, the information must be kept confidential and separate from all other personnel records. Second, the wellness program must be considered voluntary. In other words, the employer cannot require participation or penalize employees who do not participate. The Commission, however, refused to take a position on whether the ADA permits an employer to offer financial incentives to employees to participate in the wellness programs and especially when those programs include disability related inquiries or medical examinations that include tests to determine whether an employee developed or has the potential to develop certain illnesses or conditions.
As for GINA, the EEOC stated that companies can use genetic information voluntarily provided by an individual to guide that individual to appropriate disease management programs. However, if that program also offers financial incentive for participation and/or achieving certain health outcomes, the program must also be open to employees who currently suffer from the same health conditions. As an example, if you have a wellness program that offers a $150.00 participation award, and you ask for employees to voluntarily disclose any family medical history of disease such as diabetes, heart disease or high blood pressure, you must also make the program and financial incentive available to employees who have a current diagnosis of one or more of these conditions and who also want to join the program.
Of course, these Opinion letters from the EEOC are not necessarily final. However, they do show the potential outcome of any charge against an employer under GINA or the ADA when participation in a wellness program is under review. If an employer is going to provide financial incentives for participation, it is important that they do not provide the financial incentives to only limited groups of participants.
