NCD Letter to House Committee on Education and the Workforce on the H.R. 1313, "Preserving Employee Wellness Programs Act"

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March 7, 2017

The Honorable Virginia Foxx
Chairwoman
U.S. House Committee on Education & the Workforce
2176 Rayburn House Office Building
Washington, D.C. 20515

The Honorable Robert C. Scott
Ranking Member
U.S. House Committee on Education & the Workforce
2101 Rayburn House Office Building
Washington, D.C. 20515

Dear Chairwoman Foxx and Ranking Member Scott,

I write on behalf of the National Council on Disability (NCD) an independent federal agency with a mission to provide advice to the President and Congress regarding disability policy. NCD first offered a draft of the ADA in 1988 as the first comprehensive declaration of equal rights for people with disabilities in the United States. The ADA was then signed into law by President George H.W. Bush two years later and it has provided protection from discrimination to the estimated 57 million Americans with disabilities in the decades since it became law.

The goals of the ADA for individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency. These promises were made in recognition of a long history of discrimination, particularly in employment, Congress found:

…the continuing existence of unfair and unnecessary discrimination and prejudice [that] denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity.[1]

Congress was well aware of the long and pernicious history of discrimination against people with disabilities in employment, and of the need to protect the private health information of employees against unreasonable inquiries by their employer. However, the “Safe Harbor” provision of H.R. 1313 effectively undermines these protections by purporting to extend the provisions of 42 U.S.C. 12201(c)(2) to employee wellness programs. However, this provision of the ADA is essentially a carve-out that allowed insurers to underwrite and classify risks in accordance with state laws governing insurance, and the architects of the ADA were so concerned about the possibility that this provision could be broadened to open the door to discrimination that they specified that the provision was not to be used as a subterfuge to evade the purposes of the anti-discrimination provisions of the ADA.  Unfortunately, by purporting to apply this very limited exemption to employee wellness programs, this bill does exactly what lawmakers in 1989 feared and opens the door to discrimination by employers who are able to engage in the kind of medical examination and inquiry that would otherwise be prohibited under 42 U.S.C. §12112(d(A) so long as it is conducted as part of an employee wellness program. While it may be laudable to encourage employees to engage in healthy behavior and to take steps to eliminate foreseeable health risks, the Safe Harbor provision of H.R. 1313 upsets the careful balance between the interests of employer and employee established by the ADA.

Additionally, H.R. 1313 proposes that rewards of up to 50% off of insurance premiums are acceptable as a way entice employees to participate in wellness programs that might involve inquiries that expose an employee to the potential for discrimination. This is in contrast to the 30% in the EEOC regulation had established.[2] NCD had urged the EEOC to promulgate that regulation and was appreciative of the agency’s attempt to allow employers to carry out effective wellness programs while limiting the potential for coercion that could lead employees to submit to medical examinations and inquiries regarding information that they otherwise would have preferred to keep confidential. The reward permitted under this legislation seem to tip that delicate balance.

NCD urges the committee to consider rethinking the aforementioned provisions in order to uphold the integrity of the protections against prohibited inquiries and discrimination offered to employees with disabilities under the ADA. Although the goals of the legislation may be commendable, it carries with it far too much risk of rolling back the protections of a law that Congress passed on a bi-partisan basis almost thirty years ago and which has served people with disabilities well ever since. The last time Congress moved to amend the ADA, it was to restore it to its original promise after a series of court cases had departed from the core principles and objectives of this critical civil rights law. Now is not the time for this Congress or this committee to back away from this long-standing commitment to protect the rights of people with disabilities, especially with respect to the conditions of employment.

Respectfully,

Clyde Terry
Chair




[1] 42 USC § 12101(a)(8)

[2]29 CFR 1635