The AARP Foundation has filed a charge with the U.S. Equal Employment Opportunity Commission alleging an employer’s wellness program discriminates against workers in violation of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
Austin Industrial’s wellness program requires participants to reveal sensitive information, and while employees may opt out of the program, they must pay insurance premium surcharges of between $1,200 and $2,400 per year, AARP Foundation claimed in an announcement Tuesday.
Austin Industrial did not respond to a request for comment by press time.
AARP Foundation’s parent organization, AARP, has previously advocated against voluntary wellness programs that impose certain premium surcharges or penalties on workers who choose not to participate. In March, it reached a $1.29 million settlement with Yale University in a class action alleging Yale required workers to pay a $25 fee to opt-out of a university-operated wellness program.
“We have some interest in this space generally, because we feel it’s important for employees to be able to protect themselves and their genetic information in the workplace,” Elizabeth Aniskevich, senior attorney at AARP Foundation, said in an interview.
Health information privacy is particularly critical for older workers, she added, because such workers are more likely to have a disability that could be revealed by the health information collected by some wellness programs.
Aniskevich said AARP Foundation pursued a charge against Austin Industrial in part because it felt that the company’s non-participation penalties were “particularly punitive” given the large number of workers who may be impacted. She also noted the impact that wellness programs have on low-income workers who may be unable to afford penalties.
“Voluntary is voluntary,” Aniskevich said. “Your hard-earned pay shouldn’t be something that’s up for grabs.”
In 2017, AARP successfully argued before a federal judge that an EEOC rulemaking on wellness programs should be enjoined. The EEOC rule would have set the limit for “voluntary” wellness incentives at 30% of the cost of coverage.
In 2021, EEOC once again pursued an updated wellness program incentive standard, this time proposing that employers offer no more than a “de minimis incentive” to encourage participation. However, the proposal was later withdrawn amid the agency’s transition under the Biden administration, according to a blog published by attorneys with management-side firm Epstein Becker Green.
The issue of wellness program incentives is a complex and controversial one for employers, who contend that surcharges and similar mechanisms are one of the few levers available to encourage employee participation.
