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.