People With Disabilities Who Opt Out of ‘Voluntary’ Wellness Programs Will Pay the Price, and the EEOC’s Okay With That.

The following originally appeared on the American Civil Liberties Union's Speak Freely Blog.

Voluntary wellness programs at work can provide benefits to employees, but employers are increasingly adopting “voluntary” wellness programs that unfairly burden workers with disabilities the most of all. Worse, the Equal Employment Opportunity Commission seems to think that’s okay, undermining core antidiscrimination protections it used to defend.

Here’s why.

Imagine a woman living with rheumatoid arthritis and severe depression who, under doctor’s care, has finally returned to work. Her medications — a corticosteroid and an antidepressant — have triggered weight gain. Now imagine this woman facing her employer’s “wellness activities:” She is instructed to fill out a detailed questionnaire about her medical conditions; she is weighed and pronounced overweight; she is told to lose weight. Oh, and the program is voluntary — but if she doesn’t comply, she will have to pay hundreds of dollars more in annual health care premiums. 

This imaginary example is all too real: Persons with disabilities risk discrimination and stigma if their employers gain access to their private medical information. And disabled workers are far more likely to have a condition targeted by wellness programs, such as high blood pressure, high blood glucose, or being overweight. 

Historically, the Americans with Disabilities Act has provided employees with disabilities some protections against overly intrusive and punitive wellness programs. The EEOC has maintained, sensibly, that voluntary medical examinations and inquiries cannot impose penalties on employees who decline to participate. 

Until now.

The EEOC has recently proposed new regulations and guidance language on wellness programs that would allow employers to implement wellness programs that add up to 30 percent of the cost of the employee’s health insurance to an employee’s health care bill. Based on the average annual premium, this translates to an extra cost for disabled employees of about $1,800 per year, either because they don’t want to answer questions that could expose their disability to their employer or because they cannot meet the health goal

The EEOC describes these programs as “voluntary,” but workers with disabilities are the least likely to be able to afford additional health care premiums. According to the U.S. Census Bureau, median household income for people with disabilities is less than half of household income for people without disabilities: $25,974 compared to $61,103. At the same time, there is little evidence that these programs are effective. 

If the EEOC is going to allow employers to charge workers hundreds more each year, it needs to be sure important privacy and disability protections are in place.

Three safeguards matter the most. First, the EEOC needs to provide guidance language that workers with disabilities have the right to request a reasonable accommodation waiver from a wellness program, so that their medical status can be taken into account in their ability to comply. The guidelines should also protect disabled workers’ privacy, so that their decision to join or not join the wellness program doesn’t broadcast the details of — or even the existence of — their medical condition to their employer. Finally, disabled workers should rest assured that the guidelines protect them from disability-based discrimination in the workplace, such as harassment of employees who cannot comply with “normal” health standards. 

Comments on the proposed regulations are due this Friday, June 19, 2015. Tell the EEOC not to permit employers to subject their disabled workers to a Hobson’s choice: Submit to the prescribed wellness activities, or pay hundreds more each year. The EEOC should instead insure that workers with disabilities can opt out of these programs without penalty. 

Claudia Center

Senior Staff Attorney

American Civil Liberties Union