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EEOC Working Hard to Help Improve Health and Control Costs—Not

By May 21, 2009November 2nd, 2009Commentary

In informal responses to inquiries about the use of health risk assessments and wellness incentives, the Equal Employment Opportunity Commission has indicated that it will use the Americans with Disabilities Act and its general powers to limit the ability of employers to enact programs designed to improve the health of employee populations and control health care costs.  While the letters are not formal or binding, and in the case of the wellness incentive guidance, was withdrawn, they give a clear sense of the EEOC’s thinking, which is enlightened as always.  (EEOC letter)

The EEOC was asked if an employer could require that an employee respond to a health risk assessment as a condition of getting health care coverage.  The value of these assessments to the employee, the employer and the providers treating the employee is obvious.  They highlight existing or potential health issues and allow for focused attempts to manage those health issues.  The EEOC indicated that the ADA would not allow such a requirement because it amounted to asking questions which could elicit information about disabilities, which it views as forbidden.

The EEOC did note that it had allowed HRAs in connection with voluntary wellness programs, but voluntary means no penalty for non-participation and also means a limit to the positive inducements that may be used.  It goes without saying that as is often the case, we have different parts of our federal government working at cross-purposes.  While most health related agencies are pushing the benefits of wellness programs, the EEOC is raising significant barriers to their use in a work context.  Fortunately, some members of Congress have recognized the problem and are discussing legislation that would facilitate employment-related wellness programs.

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