Many employers offer a wide range of programs to promote health and prevent disease. For example, some employers may choose to provide or subsidize healthier food choices in the employee cafeteria, provide pedometers to encourage employee walking and exercise, or pay for gym memberships. On May 8, 2013, the Equal Employment Opportunity Commission will hear from an invited panel on the treatment of such wellness programs under federal law, with an emphasis on understanding the ways in which the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other statutes EEOC enforces may be implicated by these programs.
EEOC regulations and guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of a voluntary employee wellness program. The Commission’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) states, “A wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.” In addition, the Commission said in a January 18, 2013, letter that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate [in the wellness program], or whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary.” Therefore, observers have said this may mean the Commission might take the position that the larger the reward or penalty, the more likely the program is not voluntary.