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Can a wellness plan amount to employment discrimination?

Can an employer's wellness plan amount to illegal employment discrimination? That question is one that has had many employers and employees alike scratching their heads in recent years.

We do know that a significant number of employers offer a wide variety wellness programs. These programs range from asking employees questions about their health and lifestyles to more robust programs that encourage employees to make healthy lifestyle decisions.

We also know that the Americans with Disabilities Act has some potentially conflicting provisions that have caused confusion for employers and employees. Broadly, the ADA prohibits discrimination against employees and applicants on the basis of a disability or health condition. More specifically, one of the ADA’s provisions states that employers are not allowed to ask employees about medical conditions or force employees to undergo a medical examination, except when questions or examinations are needed for job-related purposes.

However, the ADA also states employers are allowed to ask medical questions when those questions are part of a voluntary wellness program. These potentially conflicting statements lead to some important questions. What is necessary for job-related purposes? When is a wellness program voluntary? And can an employer violate an employee’s rights by taking a wellness program too far?

Knowing these questions are on workers’ and employers’ minds, the Equal Employment Opportunity Commission is holding public meetings this month on the topic of wellness programs. In the past, the EEOC has issued informal opinions, but very little official guidance on how employers can implement wellness programs without violating the ADA. As part of this month’s meetings, the EEOC has invited the general public to send in comments about the complex interplay between wellness programs and employee rights.

Source: Thomson Reuters News & Insight, “EEOC considers employer-sponsored wellness plans,” Amanda Becker, May 9, 2013

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