AARP targets employee wellness programs in new bias complaint

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The seal of the The United States Equal Employment Opportunity Commission (EEOC) is seen at their headquarters in Washington, D.C.
The United States Equal Employment Opportunity Commission headquarters in Washington, D.C., U.S. REUTERS/Andrew Kelly
  • Construction firm's program isn't voluntary, group claims
  • Wellness programs have tripped up employers since Obama administration
  • Obama-era regulations were struck down in AARP lawsuit

(Reuters) - AARP, a major lobbying group for older Americans, said on Tuesday that it is challenging a construction company's requirement that workers who decline to join an employee wellness program and submit to medical screenings pay thousands of dollars in additional insurance premiums.

AARP said it had filed a complaint with the U.S. Equal Employment Opportunity Commission on behalf of Shawn Jones, an Illinois-based employee of Austin Industrial who claims the penalty of up to $2,400 per year violates the Americans with Disabilities Act because it essentially forces workers to join the program.

Texas-based Austin Industries Inc, the parent of Austin Industrial, did not immediately respond to a request for comment. Austin Industries has more than 6,000 employees, according to its website.

Wellness programs can include incentives for workers to quit smoking, lose weight or undergo preventive health screenings, among other things, and generally require them to disclose medical information that employers normally cannot ask for under the ADA.

Wellness programs are permitted under the ADA, but the law requires that they be voluntary. AARP during the Obama administration successfully sued to strike down EEOC guidance that said employers could offer discounts of up to 30% on insurance premiums to workers who join wellness programs without violating the ADA.

AARP said it planned to sue Austin Industrial unless the EEOC steps in and brokers a settlement or files its own lawsuit against the company.

AARP declined to provide a copy of the complaint. EEOC charges are typically not made public.

The EEOC had issued the Obama-era guidance in response to confusion among employers over the type of incentives that could render a wellness program involuntary.

Most business groups supported the guidance, but AARP in a 2016 lawsuit claimed the significant financial incentives allowed by the EEOC were coercive and would have a particular impact on older workers who are more likely to have medical conditions.

A federal judge in Washington, D.C., sided with AARP in 2017 and ordered the EEOC to revisit the issue.

In a proposal unveiled days before former President Donald Trump left office last year, the commission said incentives to join wellness programs must be modest, such as gift cards and water bottles, and cannot include discounted insurance premiums.

But the EEOC withdrew the proposed rule in February 2021 after President Joe Biden ordered federal agencies to freeze rulemakings so his administration could conduct a review.

The EEOC has not said when it plans to propose new rules or guidance involving wellness programs.

Read more:

EEOC unveils 'de minimis' proposal on employee wellness programs

Judge orders EEOC to revisit wellness program regulations

EEOC Withdraws Proposed Regulations Addressing ADA and GINA Wellness Program Incentives

Q&A: Despite EEOC guidance, questions remain on wellness programs

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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