Leslie Silverman, former EEOC Commissioner, now Co-Chair of Proskauer’s Government Regulatory and Contract Compliance Group, was part of a panel that testified before the EEOC today concerning the need for clearer guidance from the agency with respect to the interplay between wellness programs and anti-discrimination laws.

A recent study conducted by the Society for Human Resource Management (SHRM) indicated that nearly nine out of ten respondents say that worksite wellness programs are beneficial.  Nearly all agree that the initiatives help workers develop healthier lifestyles, and the majority agree that these programs lower health care costs and increase worker productivity.  Further, the “Affordable Care Act” prominently endorses the use of wellness plans and makes the Obama Administration’s position in strong support of wellness programs within employer-sponsored health care clear.  Yet employers interested in developing and offering such programs, or expanding and improving their current programs, are hesitant without better direction on how to structure the programs to not run afoul of current anti-discrimination laws. 

The primary concern Silverman expressed to the Commission is how to determine whether or not a program will be deemed “voluntary.”  Apart from informal opinion letters issued by EEOC’s Office of Legal Counsel (OLC) setting out a few far-end of the spectrum “don’ts,” such as not requiring employees to complete an HRA as part of a wellness plan to participate in the employer’s group health plan, or to receive medical reimbursement from the employer’s health reimbursement account, the agency has not offered any meaningful guidance as to the range of permissible spectrum “dos” with respect to financial incentives. 

Read Leslie Silverman’s full testimony here.