“The rules issued today by the Equal Employment Opportunity Commission (EEOC) governing employer wellness programs create real cause for concern because they undermine essential protections against discrimination in employment and insurance — and critical protections against invasions of medical privacy – provided by the Americans with Disabilities Act (ADA) and the Genetic Insurance Nondiscrimination Act (GINA).
These new rules take the country in the wrong direction by allowing for coercive practices, so employees have to either share private medical information with employers or pay appreciably more for health insurance. The result could well be more people refusing testing and treatments they need for fear employers and insurers will use the information against them; more people facing discrimination on the job and in insurance pricing; and higher health insurance costs for the consumers who can least afford to pay. In the end, if employers can shift costs and withhold rewards from employees with health problems, then women, workers of color, older workers and those with disabilities — who are especially vulnerable to chronic illnesses and more likely to experience health disparities — will suffer.
The Affordable Care Act (ACA) has been the greatest advance for women’s health in a generation. The wellness programs it supports could also have been transformative, creating avenues for employers to educate employees by helping them establish and meet wellness goals. But due to inadequacies in these rules, there is a real threat that some wellness programs will be punitive and create opportunities to discriminate.
Still, while these rules are concerning, we recognize that the EEOC makes clear that even if an employer’s wellness program complies with provisions of the ADA rule, an employer violates federal nondiscrimination statutes if the program discriminates on the basis of race, sex (including pregnancy, gender identity, transgender status and sexual orientation), color, religion, national origin, or age.”