One of the murkier issues with wellness plans is the manner in which they intersect with the Americans with Disabilities Act (ADA). I discuss some of the background on the issue here. A recent EEOC letter (here) provides an "informal discussion" of how the ADA applies to a particular type of wellness plan.
The Plan. The wellness plan at issue waived the deductible under a health plan for participants with serious medical conditions (e.g., diabetes) who enrolled in a disease-management program. Although the wellness program did not expressly require participants to complete a health risk assessment, the EEOC assumed that participants needed to make some disclosure about their health status to their employer to become eligible for the plan, thereby implicating the ADA.
Voluntariness. The EEOC reiterated that, because a wellness plan involves an employer inquiry into an employee's medical condition, the wellness plan must be voluntary. A plan is voluntary so long as participation is not required and employees who choose not to participate are not penalized. The plan in this case did not penalize non-participants, but it did provide a reward (waiver of deductible) for participants. The EEOC would not take a position on whether the availability of a reward renders a plan involuntary.
Reasonable Accommodation. The EEOC also noted that a wellness plan generally must provide a reasonable accommodation to individuals who are unable to meet the required outcomes or engage in required activities due to a disability. For example, if a plan requires a participant to comply with a recommended exercise routine, an accommodation must be provided if the participant is unable to comply due to a disability. The letter provides no guidance on what would be a reasonable accommodation.
Failure to Comply. The EEOC concluded its comments by observing that a participant who fails to meet the conditions of the wellness plan may be removed from the plan, so long as (1) the plan is voluntary, and (2) a reasonable accommodation has been provided for any participant who is unable to comply due to a disability. Although this was a welcome observation, it begs the questions (1) whether or when a plan is voluntary, and (2) whether an accommodation is reasonable - neither of which are answered definitively in the letter.
On the whole, this letter doesn't move the ball much in helping us resolve some of the more critical issues regarding the ADA and wellness plans. More formal guidance continues to be needed. But the letter provides a good reminder of some of the fundamental considerations when looking at a wellness plan's compliance with the ADA.