June 4, 2015
Jenny R. Yang
Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507
Dear Ms. Yang:
I write on behalf of the National Council on Disability (NCD) -- an independent federal agency, charged with advising the President, Congress, and other federal agencies regarding laws, policies, practices, and procedures that affect people with disabilities -- to alert you to significant concerns we have about the EEOC’s April 20 proposed rulemaking regarding employer-based wellness programs and to request a meeting to discuss these concerns. NCD’s own identity and policy expertise is inextricably linked to the history of the Americans with Disabilities Act (ADA), as it advanced the first draft of the law in 1988. Accordingly, we have remained especially vigilant in monitoring its implementation and any challenges posed to it.
As currently written, NCD believes that EEOC’s proposed regulations narrow critical Title I protections of the ADA in a manner contrary to clear congressional intent and moreover appears to rely upon an incorrect supposition that the Affordable Care Act (ACA) requires these detrimental changes to the ADA.
The ADA limits an employer’s ability to subject employees to medical inquiries and examinations unrelated to their job unless such inquiries are truly voluntary and are a part of a health program for employees at that worksite. These limitations were intended to restrict an employer’s ability to access an employee’s personal medical information unless directly relevant to that employee’s job performance or in instances in which an employee voluntarily provides such information as a part of an employee wellness program. These limitations were meant to prevent instances of disability-based discrimination that could easily arise from unfettered access to such information.
In the proposed rule, EEOC would permit employers to penalize employees up to 30% of the value of their health premiums for failure to participate. This is a marked departure for the EEOC, who, since July of 2000, has taken the position that the test of voluntariness of such wellness program questions is contingent upon the absence of a penalty for failure to answer. The threat of such significant financial consequences for one’s failure to participate is egregiously afoul the longstanding EEOC guidance of the test of voluntariness.
We believe that the EEOC’s proposed rule wrongly assumes that ACA’s wellness program provisions require modifications to the ADA. However, we do not believe Congress intended to upend critical ADA workplace protections when they passed ACA, particularly since there is no congressional evidence of such intent. Furthermore, we believe ACA’s wellness program provisions can be implemented consistently with the ADA’s limitations on employers pertaining to medical exams and inquiries without any change to the ADA’s protections being necessary.
We desire to discuss these matters at greater length and depth with you and request a meeting with the EEOC at your earliest convenience. NCD looks forward to having a conversation with the EEOC about this proposed rule in the near future. To coordinate dates and times that work best for the EEOC, please contact NCD’s General Counsel and Director of Policy, Joan Durocher, at firstname.lastname@example.org. Thank you for your consideration.
 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000), accessed June 4, 2015, http://www.eeoc.gov/policy/docs/guidance-inquiries.html.