Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Faced with continually increasing health insurance premiums, a growing number of employers have been implementing “workplace wellness” programs to motivate employees to lead healthier lifestyles. What legal challneges might an employer face when encouraging employers to lead healthier lives?

The Congressional Research Service (CRS), an agency within the Library of Congress which works exclusively for the United States Congress, issued a report recently entitled ‘Wellness Programs: Selected Legal Issues,’ which summarizes the legal “wellness” concerns under federal law.

The 16 page report discusses “wellness” issues under nine federal laws: the Patient Protection and Affordable Health Care Act, Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, the National Labor Relations Act, the Internal Revenue Code and Medicaid.  Because it summarizes the issues under each of these laws, the report is, in effect, a general checklist to evaluate a wellness program’s compliance with federal law. Many state laws must be considered as well.

One of the laws with the most analysis in the report is the ADA. The report notes numerous ADA issues that create compliance uncertainty, such as.

·         The ADA prohibits an employer from asking employees disability-related questions unless they are job-related and consistent with business necessity. The ADA excepts from this prohibition questions which are a part of a voluntary wellness program. The EEOC has said that the size of the incentive is a factor in determining whether a program is voluntary. In other words, the larger the incentive, the greater the risk that the program will be considered involuntary and that any disability-related inquiries asked as part of the program violate the ADA.

·         Section 501(c) of the ADA, often referred to as the insurance "safe harbor" provision, might shield from scrutiny  issues relating to the “voluntary wellness” standards in Title I of the ADA for wellness plan provisions connected to a group health insurance plan. Employers have been waiting for guidance on the application of the "safe harbor" to such plans. The report notes the existence of Section 501 but provides no analysis. 

·         The report notes that the primary goal of the ADA Amendments Act, which went into effect January 1, 2009, is to expand the scope of those who meet the definition of “disability.”  This amendment, according to the report, means “that obese individuals, those addicted to nicotine, or those with certain cholesterol or blood pressure measurements may be covered under the new language…ADA issues may be raised by certain wellness programs targeting these conditions.” Individuals with such conditions have generally not been found to be covered by the original ADA.

Because wellness programs have a positive goal and often include “rewards,”  there may be a tendency to overlook the fact that at least nine federal laws as well as state laws must be considered before implementation.  The much-anticipated ADA and GINA regulations as well as the uncertain ADA issues noted above illustrate that the law is unsettled and will be dynamic for years to come.

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Since the Americans with Disabilities Act Amendments Act was not retroactive, ADA court decisions addressing facts that arose prior to  January 1, 2009, the ADAAA’s effective date, have continued to apply the original ADA, including the now-overruled Supreme Court decisions in the Sutton trilogy and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

Now, nearly 20 months after the ADAAA, cases based on facts occurring after January 1, 2009  have made their way through the EEOC administrative process and have reached court.  Perhaps the first ADAAA decision to reach the summary judgment stage illustrates the stark contrast between the original ADA and the ADAAA when it comes to the definition of disability.

In Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare, the plaintiff had Stage III renal cancer.  The defendant argued that the plaintiff did not have a disability under the ADA because there was no substantial limitation on a major life activity, noting that his cancer was in remission during the period that gave rise to the litigation, and he did not have any work restrictions, performed his regular job duties and did not miss any significant time from work.

The federal district court in Indiana rejected this argument summarily since the ADAAA states  that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The court noted that renal cancer would have substantially limited a major life activity when it was active. The court also relied on the EEOC’s proposed regulations  to implement the ADAAA, which lists cancer as an impairment “that will consistently meet the definition of disability.” Under the original ADA, many courts, after conducting an individualized assessment to determine whether a plaintiff with cancer was substantially limited in a major life activity, had concluded that the plaintiff was not an individual with a disability.

Given the timing of the litigation process, expect a growing number of decisions arising under the ADAAA. Given the breadth of the ADAAA, expect also that many more plaintiffs will  meet the ADAAA’s definition of disability than met the original definition. Watch also for the EEOC’s  final regulations to implement Title 1 of the ADAAA. While the date for these regulations to be issued is uncertain, it has been more than a year since the EEOC published proposed regulations.

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