United States: EEOC Holds Public Meeting to Discuss Wellness Programs

Last Updated: May 23 2013

Article by Ilyse Schuman and Sherron McClain

On May 8, 2013, The Equal Employment Opportunity Commission (EEOC) held a public meeting that addressed the interaction between employer-sponsored wellness programs and federal equal employment opportunity statutes enforced by the EEOC. Commissioners Constance Barker, Victoria Lipnic, Chai Feldblum, and Commission Chair Jacqueline Berrien were present and joined by seven panelists representing business, advocacy groups and providers. Opening statements by Commissioners Barker, Lipnic, and Feldblum all noted the increased attention that that the nation's collective health and employer-sponsored wellness programs have received in recent years. Commissioner Barker further noted that the Commission's focus is on ensuring that groups protected by federal employment laws receive equal access to wellness programs and are permitted to enjoy the rewards offered for choosing those programs.

The Affordable Care Act (ACA) includes provisions designed to encourage the use and effectiveness of wellness programs. However, uncertainty surrounding the treatment of wellness programs under the Americans with Disabilities Act (ADA) and restrictions imposed by regulations issued under the Genetic Information Nondiscrimination Act (GINA) may have the opposite effect. The uncertainty centers on whether the use of financial incentives, in the EEOC's view, renders a wellness program "involuntary."

As Christopher Kuczynski, EEOC Acting Associate Legal Counsel, stated in his testimony:

The statute, the legislative history, and EEOC's ADA regulations do not elaborate on the meaning of the word "voluntary." However, EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (Employee Inquiry Guidance) explains that where a wellness program includes disability-related questions and/or requires medical examinations, the program must be voluntary, and that "voluntary" means that the employer neither requires participation in the program, nor penalizes employees who do not participate. The guidance says nothing directly about wellness program incentives and their impact on voluntariness. At the time the guidance was issued, financial incentives were not a feature of most wellness programs.

With financial incentives now a key component of many wellness programs, this question remains unanswered.

Commissioner Feldblum's opening statement acknowledged that employers and their employees deserve clarity regarding the relationship between wellness programs and federal employment laws and suggested that the Commission could provide such clarity by addressing questions such as:

  1. What accommodations are required for disabled employees who participate in wellness programs?
  2. When is a medical examination or inquiry part of an employee health program?
  3. When is a program-related medical exam or inquiry "voluntary," and therefore permissible under the ADA?

In her opening statement, Commissioner Lipnic pointed out that wellness programs implicate many statutes enforced by the EEOC, including the ADA, GINA, Title VII, the Age Discrimination in Employment Act (ADEA), and possibly other statutes; and that the Commission's duty is to articulate a position on this topic with enough clarity to ensure that stakeholders are on "sure footing." Relevant questions include:

  1. Does a wellness program's compliance with the Health Insurance Portability and Accountability Act (HIPAA) satisfy EEO requirements?
  2. When is a program "voluntary"?
  3. If financial incentives comply with HIPAA, are they "voluntary" under the ADA?
  4. Does it matter whether the incentive is a carrot or reward versus a stick or penalty?
  5. How do standards for voluntary wellness programs under GINA relate to standards under the ADA?

Commissioner Lipnic emphasized that the purpose of the meeting was educational, and not indicative of whether the Commission will issue guidance on any of the topics discussed.

After brief statements by each of the panelists, the Commissioners asked several rounds of questions, including the following:

Commissioner Barker requested that several panelists submit language after the meeting to help the Commission define voluntariness in the context of wellness plans. Commissioner Barker then asked if the panelists had any response to the statement of Judith Lichtman of the National Partnership for Women & Families regarding the potential disparate impact that wellness programs had on groups protected by civil rights laws, by imposing higher costs and withholding rewards because of health problems that disproportionately affect these groups. One panelist agreed that health care programs should not be punitive, stated that she did not believe that a "voluntary" wellness program necessarily prohibits all incentives, and offered to work with the Commission to determine which incentives should be deemed impermissibly coercive. Another panelist pointed out that wellness programs do not work well without health assessments, and that a blanket prohibition of incentives would be at odds with other initiatives implemented by the current Administration.

Commissioner Feldblum asked each panelist to address whether employee participation in cholesterol and blood sugar screening is a voluntary medical examination if: 1) screening is simply offered for free with no other incentive or penalty; 2) failure to participate in screening resulted in termination; 3) employees received a Starbucks gift card for participating; 4) employees received a $100 credit on their $300 monthly health care premium if they participated, or a $100 surcharge if not. All of the panelists agreed that scenarios 1 and 3 were voluntary medical examinations and that scenario 2 was not. The panelists disagreed on whether scenario 4 represented a voluntary medical examination.

Commissioner Lipnic asked if there was any real difference between the reasonable alternative standard under the Health Insurance Portability and Accountability Act (HIPAA) and the reasonableness standard under the ADA. Several panelists agreed that the two standards are similar enough to address the concerns presented by the Commission.

Commissioner Barker expressed concern that soon, both the Affordable Care Act (ACA) and HIPAA will use 30% of the cost of coverage as a benchmark for the maximum allowable amount of health-based incentives, and that the Commission should not create an arbitrary maximum allowance. She then asked the panelists if an employer complies with relevant EEO laws if it complies with HIPAA's guidelines on maximum incentives. Three panelists answered "yes" and three answered no. Two of the panelists who answered "no" pointed out that while the 30% standard will soon exist under the ACA and HIPAA, HIPAA does not address voluntariness and therefore is not completely analogous to the Commission's efforts regarding wellness programs.

Other questions raised by the Commissioners included whether the ADA limits the type of voluntary inquiries employers are allowed to ask, whether the concept addressed in the preamble to HIPAA's 2006 Enforcement Rule is the same as "voluntariness," how to ensure that sensitive information remains confidential and wellness programs remain affordable, whether the ACA encourages collection of medical information in the aggregate, and whether the ADA's protection against the misuse of medical information is sufficient to address discrimination concerns.

Although the Commission did not clearly state what position, if any, it would take with respect to wellness programs under the ADA, the testimony of Acting Associate Legal Counsel Kuczynski was telling. He concluded that:

Guidance from the Commission will promote both uniformity in the handling of charges alleging violations of the ADA with respect to wellness programs, and voluntary compliance to prevent discrimination from occurring in the first place.

More information on the EEOC meeting, including written statements of the panelists and Commissioners, can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.