NCD Letter to EEOC Urging Employer Wellness Program Guidance

June 5, 2013

Jacqueline Berrien, Chair
U.S. Equal Employment Opportunity Commission
131 M Street, NE
Washington, DC 20507

RE:     Employer Wellness Program Regulations

Dear Chairwoman Berrien:

I write on behalf of the National Council on Disability (NCD), an independent federal agency that advises Congress and the Administration on laws, policies, practices, and procedures that affect people with disabilities.  NCD notes the Administration’s recent issuance of the final regulations concerning employer wellness programs and urges the Equal Employment Opportunity Commission (EEOC) to swiftly issue guidance ensuring that people with disabilities are not negatively affected by these regulations.

NCD commends the Administration, particularly the Department of Health and Human Services’ Administration on Community Living, for taking important steps to ensure that people with disabilities are not discriminated against by these regulations, particularly through the inclusion of language mirroring the Americans with Disabilities Act (ADA).

NCD now urges the EEOC to swiftly issue guidance to further guarantee nondiscrimination against people with disabilities.  Specifically, such guidance must address the following:

• What accommodations are required for employees with disabilities who participate in wellness programs;
• When a medical examination or inquiry is part of an employee health program and when a program-related medical exam or inquiry is “voluntary,” and therefore permissible under the ADA;
• Whether the ADA limits the type of voluntary inquiries employers are allowed to ask;
• Ways to ensure that sensitive information remains confidential and wellness programs remain affordable; and
• Whether the ADA’s protection against the misuse of medical information is sufficient to address discrimination concerns.

Moreover, NCD urges the EEOC to address the use of penalties or monetary incentives for participation in wellness programs.  As you know, people with disabilities experience significantly high rates of unemployment.  NCD is concerned that employer-based wellness programs which penalize people with disabilities for not being as “ well” as others, and for failing to disclose disability-related information which the ADA permits them to keep confidential, make it even more difficult for people with disabilities to obtain employment on fair and equal terms.

Thank you for your anticipated attention to this important issue.  NCD stands ready to assist you in ways that our collaboration can best benefit employees with disabilities through the implementation of the employer wellness program regulations.  We are available to discuss these matters at your earliest convenience.  Please contact me at (202) 272-2004.

Respectfully,

Rebecca Cokley
Executive Director 

Cc:     Constance S. Barker, Commissioner, U.S. Equal Employment Opportunity Commissioner
          Chai Feldblum, Commissioner, U.S. Equal Employment Opportunity Commissioner
          Victoria A. Lipnic, Commissioner, U.S. Equal Employment Opportunity Commissioner
          Jenny Yang, Commissioner, U.S. Equal Employment Opportunity
          P. David Lopez, General Counsel, U.S. Equal Employment Opportunity Commission