Are wellness programs increasing employer stress? Conflict between ObamaCare and the ADA.

Many employers may be caught between a legal rock and a statutory hard place when implementing a wellness program for its workers.

The Americans with Disabilities Act of 1990 (ADA) and its amendments prohibit discrimination in employment based upon a worker’s disability. The Patient Protection Affordable Care Act (ACA), aka ObamaCare, creates incentives to promote employer wellness programs and encourage opportunities to support healthier workplaces. The incentives include employer programs that reimburse workers for the cost of membership in a fitness center and provide rewards to workers for attending monthly health education seminars. Regrettably, the ACA incentives to promote employer wellness programs may conflict with the ADA’s prohibition against disability discrimination when a worker with a disability cannot qualify to participate in an employer’s wellness program. In other words, an employer’s wellness program per ACA could arguably expose an employer to a claim of disability discrimination in violation of the ADA.

On March 20, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) on the interaction between the ADA and the ACA with regard to employer wellness programs. The proposed rules would amend the ADA with regard to financial incentives for wellness programs offered through group health plans.

The EEOC’s proposal rules have not been released for public review. The White House Office of Management and Budget (OMB) must assess and clear the proposed rule for publication in the Federal Register. Thereafter, the public will have 60 days to consider and comment on the proposed rules. Presumably, the EEOC recognized the potential conflict between the ADA and the ACA with regard to wellness programs, and proposed rules that offer guidance to employers when implementing wellness programs.