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How could anyone object to wellness programs?

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Jennifer Mathis went before the Senate Health, Education, Labor and Pensions (HELP) Committee today to defend the proposition that the federal government needs to act to keep employer-sponsored wellness programs from discriminating against people with disabilities.

The Senate HELP Committee — which is now led by Sen. Lamar Alexander, a Republican — organized the hearing partly in response to employer consternation about federal Equal Employment Opportunity Commission (EEOC) moves to take employers to court over wellness programs.

See also: Employers clash with administration over wellness.

Democrats on the committee expressed support for wellness programs and noted that the Patient Protection and Affordable Care Act of 2010 (PPACA) encourages employer use of wellness programs.

Dr. Catherine Baase, a witness who appeared on behalf of Dow Chemical Company and the American Benefits Council, a group that represents large employers, testified that the EEOC had gone after employers through litigation before even issuing guidance addressing interactions between PPACA, the Genetic Information Nondiscrimination Act of 2008 (GINA), and the Americans with Disabilities Act (ADA).

“This is very frustrating for employers who care about the well-being of their employees and take their compliance obligations seriously,” Baase said. “It is impossible for employers to abide by rules that do not exist.”

Mathis, who testified on behalf of the Consortium for Citizens with Disabilities, spoke in favor of EEOC efforts to challenge wellness program health risk assessment efforts.

Mathis acknowledged that wellness programs can be useful, but she said regulators should protect workers and job applicants against wellness program components that violate ADA restrictions.

See also: 5 tips: Accommodating employees with disabilities.

The ADA prohibits employers from punishing workers for failing to answer non-job-related medical questions as part of a wellness program, Mathis said.

PPACA did not repeal or change the ADA ban on non-job-related medical questions, Mathis added.

Although PPACA provisions limit how much employers can change the cost of insurance through wellness program rewards programs, PPACA does not address other aspects of employment discrimination, Mathis said.

Mathis argued that PPACA and the ADA limits on medical questions do not necessarily conflict. Because the two laws are capable of co-existence, the courts should regard both as effective, and apply both of the laws, Mathis said.

“It’s not all that onerous,” Mathis said at the hearing. 

If the courts and regulators stand back, employers could force workers to disclose sensitive information about their disabilities that has nothing to do with their ability to do their jobs, Mathis said.

See also: Wellness programs at work may not be as private as you think.

“In some cases,” she said, “the information solicited is not even connected to wellness services actually offered.”

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