The EEOC passed yet again on the opportunity to provide guidance on the meaning of “voluntary” under the ADA as it applies to wellness plans. Guidance would be helpful because the ADA, the EEOC regulations, and the EEOC’s Interpretive and Enforcement Guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of a voluntary employee wellness program. In a formal 2000 Guidance, the EEOC stated that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”

In a January 18, 2013 informal letter responding to an inquiry concerning a wellness program, the EEOC reiterated its 2000 Guidance and that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.”  This means that the EEOC might take the position that the larger the reward or penalty, the more likely the program is not voluntary.

But how much does this really matter? As we posted previously, a Florida district court rejected a class action lawsuit challenging Broward County’s use of a $20 surcharge to motivate employees to complete a finger stick for glucose and cholesterol and a health risk appraisal as part of a wellness plan. The Court found that the employer’s actions were protected by the ADA’s “safe harbor” provisions and whether the wellness program was “voluntary” was irrelevant. The safe harbor provisions protect employers from liability for conduct that would otherwise violate the ADA if it were taken pursuant to an insured or self-insured benefit plan so long as the plan is not “a subterfuge to evade the purposes of the ADA.” The 11th Circuit affirmed the district court’s decision.

The message from the Broward County decision is that the EEOC’s guidance on the meaning of “voluntary,” if and when it  comes, might not matter for wellness plans. Stay tuned.