Heightened EEOC Scrutiny of Employee Wellness Programs: Navigating Conflicts Between ACA Incentives and EEOC Enforcement

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, May 20, 2015

Recorded event now available

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Course Materials

This CLE course will help benefits and human resources counsel advise companies on designing and implementing employee wellness plans that comply with the Affordable Care Act’s provisions without triggering an EEOC or DOL investigation. The panel will help counsel navigate the myriad laws impacting wellness plans—including the ADA, GINA, HIPAA—and design and implement plans that do not run afoul of the EEOC’s latest objections.


Employee wellness programs are a popular tool for employers seeking to combat rising healthcare costs, and the ACA offers increased motivation to more companies to implement wellness programs. Both HIPAA and the ACA encourage group plan sponsors to offer incentives to participants who adhere to certain wellness program criteria.

The ACA prohibits discrimination on the basis of race, color, national origin, sex, sex stereotypes, gender identity, age, or disability. Under ACA regulations, wellness programs that offer incentives for employees who satisfy a standard related to a health factor must comply with a set of specific requirements.

Wellness programs have now come under fire from the EEOC, which has filed several lawsuits against businesses alleging their programs violate the ADA and GINA. The EEOC claims that wellness programs imposing substantial penalties on employees who do not participate, and incentives for those who do, can be unlawful.

Employment counsel should be prepared to advise on the structure of wellness programs to comply with legal standards such as voluntariness and to avoid disparate impact claims based on gender, race, age or disability, just to name a few. And the NLRA, FLSA and state laws may also impact wellness programs.

Listen as our distinguished panel discusses best practices for avoiding claims of discrimination based on both federal and state anti-discrimination laws. The panelists will review the EEOC’s complaints to discover what types of wellness plan incentives might trigger the agency’s attention and help plan sponsors create compliant plans.



  1. ACA and HIPAA anti-discrimination regulations
  2. ADA & EEOC’s Proposed Wellness Rule
  3. GINA
  4. Title VII
  5. NLRA and other federal laws
  6. State laws
  7. Review of EEOC lawsuits and legislative proposals


The panel will review these and other key issues:

  • What are the best practices for structuring wellness programs to comply with the latest HIPAA and ACA anti-discrimination regulations?
  • How does the definition of “voluntariness” (ADA and GINA) apply to wellness programs? What considerations should be made when structuring those programs based on the definition? What are the key provisions of EEOC’s proposed Wellness Rule
  • How can wellness programs cause a disparate impact based on race, age, gender or disability? What techniques should be employed to avoid those claims?
  • What NLRA and other federal law issues need to be considered in implementing a wellness program?
  • What state law issues, including lifestyle laws, impact wellness programs?


Eric S. Dreiband
Eric S. Dreiband

Jones Day

Mr. Dreiband represents companies in all aspects of civil rights, employment discrimination, and wage and hour...  |  Read More

Morris, Frank
Frank C. Morris, Jr.

Epstein Becker & Green

Mr. Morris leads the firm’s Labor and Employment Practice in the Washington, DC, office, and chairs the...  |  Read More

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