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EEOC Wellness Program Suits Highlight Need for Agency Guidance

The EEOC has been pursuing litigation against wellness programs of late, arguing that certain health plan penalties render participation in wellness program health screens ”involuntary” and thus violate Americans with Disabilities Act (ADA), which prohibits medical exams unless they are  voluntary or  are job-related and consistent with business necessity.  (See recent blog post about this.)  Senate Republicans rightly criticized the EEOC general counsel during recent confirmation hearings about the agency’s pursuit of litigation against wellness programs when it has not provided guidance about the standards it believes employers should follow to ensure compliance with the ADA.  They noted that “wellness plans with premium discounts were specifically authorized in the health care law with strong bipartisan support—one of the few provisions of Obamacare with both Republican and Democrat buy in.”

Undoubtedly, a significant amount of time, money, and uncertainty could be saved by employers and the EEOC alike by the promulgation of rules that are consistent with both the Affordable Care Act’s (ACA) encouragement of wellness programs and the ADA’s protections for employees.  In the absence of some direction from the EEOC on how to structure wellness programs to best avoid discrimination claims, employers are left guessing as to the boundary betweenin the unenviable position of either risking litigation by establishing or maintaining a wellness program, or discontinuing a program that provides benefits to both the company and its employees.

© 2020 Proskauer Rose LLP.


About this Author

Katharine H Parker, Labor Employment Attorney, Proskauer Rose Law Firm

Katharine Parker is a Partner in the Labor & Employment Law Department and co-head of the Employment Law Counseling & Training and Government Regulatory Compliance and Relations Groups.

Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour and class and collective action litigation, and she is a frequent contributor to the Proskauer on Class and Collective Actions blog.