By Cynthia McNabb
As open-enrollment season for health insurance approaches, employees may see (if they have not already) options for reducing their health insurance costs by voluntarily enrolling in an employer wellness program. Alternatively, your union may have even entered into an agreement with your employer that requires you to participate in an employer wellness program, in order to maintain your health insurance. Billed as your opportunity to save money, participation in employer wellness programs are, in reality, merely fee-shifting endeavors that penalize employees with higher deductibles, higher co-pays, or fees for failure to participate. Unfortunately, trying to sort out what your rights are with respect to these wellness programs under the ADA, HIPAA and GINA ** (“Genetic Information Nondiscrimination Act) is a complicated undertaking.
In the Eleventh Circuit decision, Seff v. Broward County, the court ruled that Broward County, Florida’s wellness program did not violate provisions of the Americans with Disabilities Act (ADA). Similar to employer wellness programs adopted within the State of Washington, along with many other state and public employers, Broward County adopted a wellness program that encouraged employees to take health screening tests and to complete medical questionnaires ( both of which asked for information on medical conditions, including conditions which qualify as a disability under the ADA). Failure to “voluntarily” participate in the program resulted in a $20/per pay period charge. Employees who did opt into the wellness program and who had asthma, hypertension, diabetes, congestive heart failure or kidney disease were asked to take part in a disease management program.
The Court did not directly address whether the questionnaires themselves or programs that provide a strong financial incentive to participate directly violate the ADA. Instead, the Court of Appeals turned to the ADA’s safe harbor provisions, which provide that the ADA shall not prohibit a covered entity (like an insurance plan) “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.”
While this ruling is a win for employers, many legal issues remain, including an outstanding class action law suit filed in Oregon, along with EEOC guidance that appears to disfavor employer wellness programs that offer a strong financial incentive to the employee for his or her participation. In 2009, the EEOC issued informal letter guidance that determined that requiring all employees to take health risk assessments that included disability-related inquiries and medical exams as a prerequisite for obtaining group health coverage would violate the ADA. Further, the ADA prohibits employers from requiring employees to undergo a medical exam or answer medical-related questions unless there is an exception – like participation in a “voluntary” wellness program. The EEOC has stated, in informal guidance, that a wellness program is “voluntary” if it (1) does not require participation; and (2) does not penalize employees who do not participate.
Also not resolved are the issues of whether these types of programs violate related HIPAA and GINA laws, along with their state counterparts. The EEOC has stated that health risk assessments that ask a mix of questions, including asking for genetic information, and which were used to provide financial incentives to participants complied with GINA only if the financial incentive was paid to employees without regard to whether the employee answers the questions or not.
It seems that until the EEOC begins providing consistent and formal guidance or when other U.S. Courts of Appeals or the U.S. Supreme Court takes on these issues, there remain many open questions regarding employee rights under the ADA, HIPAA and GINA with respect to employer wellness programs. If you are financially compelled to enroll in an employer wellness program and feel that it unfairly discriminates against you or penalizes you for genetic or disability-related information, you should seek advice from counsel and weigh the financial costs against potential violation of your privacy and disability rights. ** GINA, a relatively new statute, prohibits genetic discrimination in employment and procurement/maintenance of health insurance. GINA prohibits employers from asking for genetic information, like family medical history or requiring blood tests in order to screen employees or limit access to insurance.
