Written Testimony of Chai Feldblum, Commissioner

Meeting of May 8, 2013 - Wellness Programs Under Federal Equal Employment Opportunity Laws

Thank you Madame Chair for holding this meeting and thank you Commissioner Lipnic for requesting that we discuss this topic at a Commission meeting.

This is a timely and important matter and I am glad we are discussing it today.

Employer-sponsored wellness programs are growing rapidly. According to the Bureau of Labor Statistics' National Compensation Survey, 35% of full-time public sector workers and 19% of full-time private sector workers had access to employer-sponsored wellness plans in 1998-1999.¹ By 2008, those numbers had risen to 54% of full-time public sector workers and 28% of full-time private sector workers.² A more recent survey by the Society for Human Resource Management (SHRM) found that 55% of SHRM member organizations now offer wellness plans.³

We even have wellness programs here at the Commission. I participated in one just a few weeks ago. The health unit in our headquarters office offered free blood sugar and cholesterol level screening for all employees last month. I signed up because I wanted to see whether the new exercise and dietary regimen that I had started six months earlier had resulted in any lowering of my cholesterol level. (Lab results that I had received through my private care physician had indicated that I needed to bring down my cholesterol level.) I also anticipated that going through a health screening program at work might give me a first-hand sense of how these programs operate in practice. Indeed, that experience has informed the questions I will ask at this meeting.

Congress has also addressed and facilitated the growth of wellness programs. In §1201 of the Affordable Care Act (ACA), Congress exempted wellness programs that condition a percentage of an employee's premium on the achievement of health outcomes from the non-discrimination provisions of the Health Insurance Portability and Accountability Act (HIPPA), if the wellness program meets certain factors.⁴ Section 1201 of the ACA also gives the Secretaries of Labor, Treasury, and Health and Human Services the authority to increase the amount an employer can condition on the achievement of a health outcome to up to 50% of an employee's premium. These agencies have issued a notice of proposed rulemaking to implement this section of the law.⁵

As commenters have noted on many occasions, the changes made in the ACA and HIPPA do not resolve all of the legal issues related to wellness programs. The Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) also place legal restrictions on the design and implementation of these programs.

To date, the Commission has not spoken clearly and definitely on the myriad of legal issues that can arise under these laws for wellness programs. This meeting is an important first step in moving forward on that process. I hope this meeting will lead to a better understanding on the part of both employers and employees of what the ADA and GINA require for purposes of wellness programs.

Based on my reading of the statements and materials submitted for this meeting, I think the EEOC will face (at least) three basic legal questions when dealing with this area:

1. What accommodations must an employer provide to employees with disabilities who participate in wellness programs?
2. When is a medical examination or inquiry a "part of an employee health program"?
3. When is a medical examination or inquiry, that is part of an employee health program, considered a "voluntary" examination or inquiry?

I look forward to hearing from our witnesses on all of these questions.

There are both easy and hard aspects to these questions. The easy part is that the ADA does apply in some way to these programs. The ADA's legal restrictions are clearly intended to apply to wellness programs - in light of the explicit statutory language referencing terms and conditions of employment (with regard to prohibiting discrimination on the basis of disability) and the explicit statutory language referencing employee health programs (with regard to restrictions on medical examinations and inquiries). The more difficult aspect for the agency is how to interpret certain pieces of the statutory text.

On the question of accommodations, the ADA requires reasonable accommodations for persons with disabilities participating in wellness programs, if needed. The ADA prohibits discrimination on the basis of disability with regard to the "terms, conditions, and privileges of employment."⁶ The statute further provides that the failure to provide accommodations constitutes discrimination on the basis of disability unless the "covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business."⁷ Wellness programs are "terms, conditions, and privileges of employment" and the covered entities that offer them must provide accommodations that enable persons with disabilities to enjoy the benefits of the programs.

The requirement to provide accommodations in wellness programs is only a starting point. The Commission has much to consider with regard to what such accommodations might look like in the context of wellness programs. I hope the witnesses will address this issue in some detail.

A more complicated legal question arises with regard to whether a medical exam is given, or a medical inquiry is made, as part of a "voluntary" wellness program.

The statute provides as follows:

(4) Examination and inquiry

(A) Prohibited examinations and inquiries. A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

(B) Acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

42 U.S.C. §12112(d)(4)(A)-(B). (emphasis added).

In order to meet the statutory exemption for "acceptable examinations and inquiries," therefore, a covered entity must show that its medical examinations and inquiries are "voluntary" and "are part of an employee health program." But what do those terms mean precisely?

The development of the ADA may provide some guidance for answering these questions.

In drafting the ADA, Congress mirrored to a large extent the regulations that the Department of Health, Education and Welfare (HEW) had developed to implement Section 504 of the Rehabilitation Act of 1973.⁸ Congress deviated from the Rehabilitation Act model only when a specific problem had arisen in the courts during implementation of that law. For example, under Section 504, the courts had split on the question of whether reassignment to another position was a required reasonable accommodation under the Rehabilitation Act. Congress resolved that issue by explicitly listing "reassignment to a vacant position" as an example of an accommodation under the ADA.

Similarly, the medical examinations and inquiries provisions in the ADA that we are discussing today were designed to address a specific problem that had arisen under Section 504 of the Rehabilitation Act.

The Section 504 regulations had included restrictions on pre-employment inquiries related to disability. But the regulations provided no explicit restrictions on medical inquiries or medical examinations of current employees. This led at least one district court to conclude that the non-discrimination provision of Section 504 did not apply to such examinations or inquiries. In Leckelt v. Board of Commissioners of Hospital District 1, 714 F. Supp. 1377 (ED. La. 1989), an employee was fired after he refused to disclose the results of his HIV test. The court concluded that the employer's demand for the HIV test results would have been illegal had it been made prior to Leckelt's employment. However, because Leckelt was a current employee, the court ruled that he had no claim under the law.⁹

The ADA's provisions on post-employment medical examinations and inquiries, now codified at 42 U.S.C. §12112(d), were added to address this gap in the law. The statutory provision places certain restrictions on pre-employment medical exams and inquiries, as well as on medical exams and inquiries of current employees, with different exceptions at each stage of employment.

With regard to current employees, Congress recognized that there were instances in which it would be appropriate for a covered entity to either require or offer a post-employment medical exam or inquiry. To cover these instances, the statute permits covered entities to require examinations and to make inquiries that are "job-related and consistent with business necessity"¹⁰ and to conduct "voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site."¹¹

The first exemption covers medical examinations and medical inquiries that are closely related to an individual employee's ability to perform a job. The second exemption covers the type of wellness programs that we are discussing today. As the House Committee on Education and Labor noted in its report:

"[a] growing number of employers today are offering voluntary wellness programs in the workplace. These programs often include medical screenings for high blood pressure, weight control, cancer detections, and the like. As long as the programs are voluntary and the medical records are maintained in a confidential manner and not used for the purpose of limiting health insurance eligibility or of preventing occupational advancement, these activities would fall within the purview of accepted activities."

H. Rep.101- 485, 101st Cong., 2d Sess. at 75 (1990).

Thus, medical inquiries of current employees, when such inquiries are connected to wellness programs, are acceptable under the ADA if they are voluntary, if the results are kept confidential, and if the questions are part of an employee health program.

The principal concern for persons with disabilities in post-employment exams was (and continues to be) tests that are designed to discover impairments that have no impact on the performance of a job but are freighted with social stigma - e.g., HIV/AIDS, epilepsy, infectious diseases, and mental health conditions. The limited voluntary examinations described in the House Education and Labor Report - confidential screenings for high blood pressure, weight control, and cancer detection - do not raise these types of issues. Nevertheless, one can easily see how broad, involuntary, and non-confidential forms of such examinations or inquiries could raise similar problems. The restrictions in the ADA play an important role in ensuring that examinations and inquiries connected to wellness programs do not recreate the problem that Congress was trying to prevent by including the prohibition on post-employment inquiries.

One of the steadfast principles of statutory interpretation and administrative law is that an administrative agency charged with enforcing the law must follow Congress' direction whenever Congress has spoken directly on an issue. In the absence of direct Congressional guidance, an agency has leeway to develop its own interpretation of the law, as long as it is a "reasonable" construction of the statutory language.¹²

I look forward to discussing with the witnesses their views on what the ADA requires with regard to wellness programs and I look forward to working with my fellow Commissioners as we continue to explore the legal questions raised with regard to wellness programs.

Footnotes

¹ Bureau of Labor Statistics, Access to Wellness and Employee Assistance Programs in the United States, Chart 1 available at http://www.bls.gov/opub/cwc/cm20090416ar01p1.htm.

² Id.

³ Society for Human Resource Management, Survey Findings: Workplace Wellness Initiatives (December 2012).

⁴ P.L. 111-148

⁵ See Notice of Proposed Rulemaking: Incentives for Nondiscriminatory Wellness Programs in Group Health Plans, 77 F.R. 70619 (Monday, November 26, 2012). In the proposed rule, an employer may increase the percentage to 30% of the premium for the achievement of most health outcomes, and up to 50% for achieving smoke cessation results.

⁶ 42 U.S.C. §12112(a)

⁷ 42 U.S.C. §12112(5)(A)

⁸See Feldblum, Medical Examination and Inquiries under the ADA: A View from the Inside, 64 TEMP. L. REV. 521 (1991) ("The ADA drafters sought to draw as much as possible on the fifteen years of experience under the Rehabilitation Act in order to create a workable law that could extend to the private sector.")

⁹Leckelt v. Board of Commissioners of Hospital District 1, 714 F.Supp. 1377, 1389 (ED.La. 1989).

¹⁰ 42 U.S.C. §12112(d)(4)(A)

¹¹ 42 U.S.C. §12112(d)(4)(B)

¹²See Chevron v. NRDC, 467 U.S. 837 (1984).