EEOC Update: When Does Employee Wellness Go Too Far?

Ever since the Equal Employment Opportunity Commission (EEOC) filed lawsuits against Honeywell and other companies for having wellness programs that violate the Americans with Disabilities Act (ADA) and other federal regulations, employers have been demanding guidance on what constitutes a voluntary and compliant program. This call for clarity continues to advance with the June 19 deadline for interested parties to submit comments.

The proposed rule published this spring attempted to strike a balance between employers who want to use incentives to drive worker participation and consumer advocates who see penalties as de facto coercion. The plan drew about 300 comments from employers and consumer groups, with plenty of criticism. Many employers say the proposed rule doesn’t clear up the conflicts between the health law and the ADA. In addition, it restricts their ability to offer rewards, which are needed to “engage employees and their families to be aware of their…lifestyle risks,” said Steve Wojcik of the National Business Group on Health. Consumer groups are also unhappy, saying the proposal strips workers of important protections against health or disability-related discrimination by loosening earlier government definitions of what constitutes a voluntary program.

The EEOC will review the comments as it moves towards a final ruling, but despite the much needed clarity on wellness compliance, this ruling will not help employers build successful wellness programs. It will help employers design compliant programs and prevent governmental lawsuits. To build a successful wellness program, employers need to appreciate that wellness is something they should do for their employees, not to them. If a program is “compliant” but seen as excessively coercive by employees and recruits, how will that impact a company’s business? Cost savings from lower medical expenses will not offset unhappy employees and poor online reviews, and the choice between effective and friendly wellness programs does not need to be mutually exclusive.

When thinking about what specific elements of a wellness program go too far, employers should challenge themselves to think about it from the employee’s perspective rather than a legal perspective. Having a program that is legally compliant but hated by employees will only result in a degradation of human capital, which far outweighs the benefits any organization can get from wellness.