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Wellness programs can give employers a way to provide an employee benefit and keep health care costs down. To increase participation in wellness programs, some employers might find it useful to offer financial incentives. While such a practice is acceptable in the Equal Employment Opportunity Commission's view, employers should make sure such programs are voluntary, according to a commission expert.

The opinion came in a letter from the EEOC's Peggy R. Mastroianni, associate legal counsel, in response to a query seeking guidance on how wellness programs are treated under the ADA and the Genetic Information Nondiscrimination Act.

Citing the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations under the ADA, Mastroianni also explained that a wellness program is "voluntary" so long as the employer neither requires participation nor penalizes employees who do not participate.

She went on to explain that the EEOC has not taken a position on whether ADA Title I permits employers to offer financial incentives for employees to participate in wellness programs.

"We will carefully consider your comments and the comments of other stakeholders that we have received on this important issue," Mastroianni wrote.

GINA and financial incentives. Under GINA Title II, Mastroianni explained, employers are prohibited from requesting, requiring, or purchasing genetic information about employees. However, an exception to this rule allows employers to acquire genetic information about an employee or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis.

When this happens, the individual receiving services must give prior "voluntary, knowing, and written authorization."

While employers are not allowed to offer financial inducements to individuals to provide genetic information, they can offer incentives for participation or for achieving certain health outcomes.

Under these circumstances, "the program must also be open to employees with current health conditions and/or to individuals whose life style choices put them at increased risk of developing a condition," wrote Mastroianni.

Additionally, the employer may only receive information in aggregate terms that do not disclose the identity of the individual receiving services.

Relationship to GINA Title I. Mastroianni also addressed a question about an example the EEOC provided in 29 CFR Section 1635.8(b)(2)(ii). The example concerns employees who voluntarily disclose a family medical history of diabetes, heart disease, or high blood pressure on a health risk assessment and employees who have a current diagnosis of one of these conditions. According to the EEOC, an employer would not violate GINA by offering such employees $150 to participate in a wellness program designed to encourage weight loss and a healthy lifestyle.

The questioner challenged this example as being inconsistent with GINA Title I regulations.

Mastroianni responded by noting that the EEOC is "not in a position to offer an interpretation" of GINA Title I since it is enforced by other federal agencies.

"However, our goal in formulating the position on wellness program incentives and the examples in our Title II regulations was to be consistent with the positions taken by the Title I agencies," Mastroianni added.

Read more at the WorkersComp Forum homepage.

September 12, 2011

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