On Jan. 18, 2013, the Equal Employment Opportunity Commission (EEOC) issued an informal discussion letter regarding voluntary wellness programs and reasonable accommodation requirements. In the letter, the EEOC addressed whether the Americans with Disabilities Act (ADA) allows a health plan to waive the annual deductible for employees who meet certain requirements, such as enrollment in a disease-management program or adherence to a doctor’s exercise and medication recommendations.
Although the plan at issue would not require employees to complete a health risk assessment or undergo medical testing to participate, the EEOC assumed that employees would be required to disclose qualifying health conditions they have as a condition of participation. As a result, the EEOC classified the plan as awellness program and informally concluded that:
- Disability-related inquiries and medical examinations are permitted if they are part of a voluntary wellness program; and
- To comply with the ADA, the plan must offer a reasonable accommodation to employees who cannot earn the reward due to a disability.
Overview of the ADA
The ADA prohibits employers from discriminating against individuals with disabilities. Private employers, employment agencies, labor organizations, labor-management committees, and state and local governments must comply with the ADA. The ADA defines “disability” as having a physical or mental impairment that substantially limits a major life activity.
Voluntary Wellness Program Requirements
Title I of the ADA limits when an employer may obtain medical information from applicants and employees. Before a job offer is made, the ADA prohibits all disability-related inquiries (that is, questions likely to elicit information about a disability) and medical examinations, even if they are related to the job. After a conditional job offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category. Once employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related andconsistent with business necessity.
However, an employer may conduct disability-related inquiries and require medical examinations as part of a voluntary wellness program without violating the ADA. A wellness program is voluntary if employees are not required to participate and they are not penalized if they decide not to participate.
The plan at issue provides a reward for participation (waiver of the annual deductible). The EEOC has not taken a position on:
- Whether and to what extent a reward amounts to a requirement to participate; or
- Whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary.
Reasonable Accommodation Requirements
If a wellness program is voluntary and an employer requires participants to meet certain health outcomes or to engage in certain activities in order to remain in the program or to earn rewards, it must provide reasonable accommodation (absent undue hardship) to individuals who are unable to meet the outcomes or engage in specific activities due to a disability.
The plan at issue requires participants to have a “Medication Possession Ratio > 80%.” The medication possession ratio (MPR) identifies the extent to which an individual is taking his or her required medication. Assuming the program is voluntary and an employee is unable to meet the MPR because of a disability, the employer would need to provide a reasonable accommodation to allow the individual to participate in the plan and to earn whatever reward is available.
The EEOC also addressed whether a participant can be lawfully removed from the plan for failure to comply with plan requirements. The individual would then receive the same benefits available to other employees (that is, the “standard” plan). If a plan is voluntary and persons who are unable to meet the plan requirements because of a disability are given reasonable accommodations, a plan would be permitted to remove an employee from the “higher benefit” plan for failing to meet requirements, as long as he or she remained eligible to participate in the employer’s standard benefit plan.
Source: The Equal Employment Opportunity Commission