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Regulations put employee-wellness plans in limbo with EEOC

In past posts on this blog we've discussed a number of topics concerning workers' physical wellness and how far an employer can go in the workplace when it comes to this fact. According to Leslie Silverman, former commissioner of the Equal Employment Opportunity Commission, the Americans with Disabilities Act, the Health Insurance Portability and Accountability Act, the Affordable Care Act, and the Genetic Information Nondiscrimination Act have all created a patchwork of regulations that seem to be leaving more questions than answers.

The confusion this month has to do with employer-sponsored wellness programs that encourage employees to improve their health through incentive programs. But where the EEOC is seeing problems is in the number of discrimination cases that pop up across the nation nearly every month, including here in Indiana as well. Without definate answers, Silverman says, she and other EEOC agents are having a difficult time guiding their clients through the plethora of federal laws and subsequent litigation.

Despite the fact that the EEOC understands employment law probably better than anyone else, the agency has still been hesitant to give their definitive stance on whether these types of wellness programs and plans should be considered discriminatory or not. "To date, the commission has not articulated a position on the issue," explains the EEOC's current commissioner. This might have something to do with the fact that while employers cannot ask specific medical questions about an employee unless it directly pertains to their position, they can however ask these questions as part of a voluntary wellness plan. It's a potentially problematic scenario: an employer may see certain medical questions as necessary for the program while employees may see them as discriminatory and prohibited by the ADA.

From the EEOC's standpoint, employers will need to walk a fine line between what they can and cannot ask of their employees; especially when it comes to wellness programs and their potential to disciminate.

Source: Reuters News, "EEOC considers employer-sponsored wellness plans," Amanda Becker, May 9, 2013

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