Earlier this year, we posted that we continued to wait for ADA “voluntary” wellness plan guidance from the EEOC. In a January 18, 2013 informal letter responding to an inquiry concerning a wellness program, the EEOC reiterated its 2000 Guidance 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.”  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.” This means that the EEOC might take the position that the larger the reward or penalty, the more likely the program is not voluntary under either the ADA or the Genetic Information Nondiscrimination Act (GINA).

In a September 23, 2013 letter to the EEOC, Congresswoman Louise M. Slaughter noted that she “hope[s] the EEOC promptly drafts sub-regulatory guidance” concerning the voluntary nature of wellness plans. Congresswoman Slaughter’s letter was in reaction to newspaper reports that Penn State University employees who did not submit to “an online health assessment that requested sensitive and personal health information” would be charged a “$100 noncompliance fee per month.” According to the New York Times, Penn State has shelved part of that program. Congresswoman Slaughter’s letter notes that the Penn State plan “still raises concerns about the type of information that can be collected through wellness programs and the definition of ‘voluntary’ participation.”

Employer wellness plans already need to comply with regulations issued under the Affordable Care Act by numerous federal agencies but those regulations state that compliance with their regulations is not necessarily compliance with other laws, i.e., the ADA and GINA.  So while more employers adopt wellness programs complying with the regulations of various agencies, the EEOC’s silence leaves employers in limbo as to whether those programs are legal.

More than a year ago, we posted that waiting for the EEOCs guidance on leave as a reasonable accommodation under the ADA is like waiting for Beckett’s Godot: it is not coming today; it might come tomorrow.  Estragon and Vladimir can add the EEOC’s guidance on wellness programz to the list of things for which they are waiting.