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workplace wellness guy on a fitness ballSome of you have expressed dismay at recent EEOC litigation challenging routine (and ACA/HIPAA-compliant) wellness programs for alleged violations of the Americans with Disabilities Act (ADA).

Turns out Congress is a bit dismayed too.   At a hearing yesterday of the Senate Committee on Health, Education, Labor & Pensions, the agency was taken to task by the ranking Republican, Senator Lamar Alexander.

Here’s the press release and the Senator’s remarks.

I am also concerned that EEOC has not offered any guidance on voluntary employer wellness plans to encourage healthy lifestyle choices, yet is filing lawsuits against employers who offer these plans to employees on the basis of disability discrimination.

Wellness plans with premium discounts were specifically authorized in the healthcare law with strong bipartisan support—one of the few provisions of the Affordable Care Act with both Republican and Democrat buy in.

EEOC was scheduled to publish two proposed rules on wellness plans last June and invite comments on the proposals – but there has been no action.

These wellness plan lawsuits are sending a confusing message to employers – reliance on the healthcare law’s authorization of wellness plans does not mean you won’t get sued.

The Congressional sentiment probably only bodes well for employers…an EEOC victory in any such litigation might well inspire Congress to pass legislation providing that ACA- and HIPAA-compliant wellness programs receive a free pass under the ADA.