During a public meeting on May 8, 2013, the U.S. Equal Employment Opportunity Commission (EEOC) heard testimony from a panel of witnesses representing business and employee advocates and providers regarding the importance of developing guidance under the various federal statutes that are implicated by wellness programs.

Notwithstanding the widespread use of wellness programs, there are numerous open issues for which definitive federal guidance has not yet been issued.  The most important open issue involves wellness programs that require medical exams or ask disability-related questions, both of which would ordinarily give rise to a violation of the Americans with Disabilities Act (ADA).  Although the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the EEOC has not issued definitive guidance on the meaning of “voluntary” in the context of wellness programs.  Panelists also suggested that EEOC’s regulations under the Genetic Information Nondiscrimination Act (GINA)-which prohibits acquiring genetic information including family medical history–should provide guidance on whether spouses of employees may be asked for health information in the context of wellness programs.

The EEOC also heard testimony about wellness programs and potential violations of Title VII of the Civil Rights Act’s prohibitions on race, sex, and national origin discrimination, and the Age Discrimination in Employment Act’s (ADEA) prohibitions on discrimination against people 40 and older. One panelist noted that women tend to have more health problems than men and older people tend to have more problems than the young.  The speaker suggested that punitive measures for failing to meet certain biometric markers therefore could have an unjustified disparate impact on certain groups, in violation of both Title VII and the ADEA.

Testimony noted that it was important for the EEOC to issue guidance consistent with the regulations and guidance under the Health Information Portability and Accountability Act (HIPPA) non-discrimination rules and the Affordable Care Act (ACA) which set forth the permissible rewards for achieving a health related status factor.

It is important for employers to understand that the EEOC has just begun its analysis of the interplay between employer wellness programs and the federal laws the EEOC administers, so wellness programs should be carefully reviewed before implementation.

More information about the EEOC, including panelists’ statements, biographies and a transcript of this meeting, can be found at www.eeoc.gov.