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NCD Letter to Subcommittee on Workforce Protections Regarding Wellness Legislation Monday, March 30, 2015
 
 Civil Rights
  
    

    
    Employment
 March 30, 2015 Chairman Tim Walberg
Committee on Education and the Workforce 
Subcommittee on Workforce Protections 
U.S. House of Representatives
2181 Rayburn House Office Building
Washington, DC 20515 Ranking Member Frederica Wilson 
Committee on Education and the Workforce 
Subcommittee on Workforce Protections 
U.S. House of Representatives
2101 Rayburn House Office Building
Washington, DC 20515 Dear Chairman Walberg and Ranking Member Wilson: I write on behalf of the National Council on Disability (NCD), an independent federal agency, to provide advice and counsel to the Committee on a matter currently pending review and highlighted in the Committee’s March 24th hearing regarding employer-based wellness programs’ obligations under the Americans with Disabilities Act (ADA). NCD strongly urges lawmakers in both the House and Senate to reject H.R. 1189 and S. 620 as these measures threaten to substantially weaken important protections under the ADA. By way of brief background, NCD’s own identity and policy expertise is inextricably linked to the history of the ADA. NCD began as a small advisory body at the Department of Education, but in 1984, Congress made NCD independent and charged it with reviewing all federal policies and programs as they affect people with disabilities. Two years later, its 15 members appointed by President Reagan delivered on that mandate by calling for enactment of a national civil rights law for people with disabilities; and in 1988, NCD offered the first draft of the law. 25 years ago this July, President George H.W. Bush signed the ADA into law, calling it, “...the world’s first comprehensive declaration of equality for people with disabilities...”[[1]](https://ncd.gov/publications/2015/03302015/#Endnote1) The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (ADAAA) can be viewed together as a great victory of bipartisanship. When George W. Bush signed ADAAA in 2008, his father joined him at the White House to mark the occasion, as did Sen. Tom Harkin (D-IA, Ret.), Sen. Orrin Hatch (R-UT) and other luminaries from both sides of the aisle. Similarly, when the Equal Employment Opportunity Commission (EEOC) released its ADAAA regulations, the U.S. Chamber of Commerce applauded the bipartisan nature of the Commission’s efforts: “The Commission is to be commended for undertaking the hard work needed to reach bipartisan agreement that has been a hallmark of the Americans with Disabilities Act for the last two decades. We know firsthand that these issues can be exceedingly difficult. While we have only begun to review the final regulation, it is clear that the Commission gave substantive consideration to our comments and those of other stakeholders.”[[2]](https://ncd.gov/publications/2015/03302015/#Endnote2) Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The EEOC enforces Title I and received more than 25,000 complaints of disability discrimination complaints in FY 2014.[[3]](https://ncd.gov/publications/2015/03302015/#Endnote3) In response to a documented history of employment discrimination against people with disabilities, including “hidden” disabilities such as psychiatric disabilities, epilepsy, diabetes and many other disabilities, the ADA only permits questions related to medical conditions and disabilities to the extent that these questions are job-related and consistent with business necessity. In 2008, Congress reaffirmed the importance of these protections when it passed the ADAAA and retained the prohibition against disability-related inquires except in narrow circumstances. Notwithstanding this prohibition, employer-based wellness programs that may provide employees with an opportunity to voluntarily disclose health information have always been allowed under the ADA. However, these programs have always been subject to scrutiny regarding their voluntariness and the EEOC plays a critical role in developing guidance with respect to the facts and circumstances that reliably indicate that a program is voluntary rather than coercive. The Affordable Care Act (ACA)’s provisions regarding wellness programs do not conflict with the ADA on this point, nor does it amend, alter, or supersede the ADA’s requirements in any way. However, NCD is concerned that a proposed rule of construction in H.R. 1189 (and S. 620) seeks to operate as though it did and suggests that any disability disclosure that would not violate the ACA does not violate the ADA. ACA is not an employment discrimination statute, nor does it purport to describe the facts and circumstances that indicate whether a wellness program’s required disclosures are voluntary. While ACA stipulates that rewards for participation in an employer-based wellness program cannot exceed 30% of the cost of employee-only coverage in order to avoid discrimination in insurance coverage, it is silent on the question of when a reward or penalty violates the ADA by coercing an employee to disclose his or her disability status. NCD first recognized the potential for tension between the ACA wellness provisions and the privacy protections offered by the ADA in a letter to EEOC Chair Jacqueline Berrien dated June 5th, 2013. In that letter, NCD urged the EEOC to issue guidance that would address: When a medical examination or inquiry is part of an employee health program and when a program-related medical exam or inquiry is voluntary and therefore permissible under the ADA;
  What accommodations are required for employees with disabilities who participate in wellness programs;
  Whether the ADA limits the type of voluntary inquiries employers are allowed to ask;
  Ways to ensure that sensitive information remains confidential and wellness programs remain affordable; and
  Whether the ADA’s protection against the misuse of medical information is sufficient to address discrimination concerns. NCD is very concerned that each of the bills under consideration during the Committee’s recent hearing in some way erodes the ability of the EEOC to enforce the ADA; and that H.R. 1189 specifically undermines the right of employees and applicants with disabilities to keep disability and health-related information private when the disability is unrelated to the performance of the job. By making a general pronouncement that the ADA cannot be violated by a wellness program operating within the perimeters of the ACA, H.R. 1189 fails to address the aforementioned issues while subverting the EEOC’s critical role and expertise in crafting guidance and bringing litigation that would allow the judicial system to further clarify when a wellness program has overstepped and violated the ADA. H.R. 1189 opens the door to discriminatory practices with no remedy, thereby dramatically weakening the ADA and the EEOC’s ability to address disability discrimination. NCD eagerly anticipates the EEOC’s clarification regarding the ADA’s applicability to employer-based wellness programs in the form of guidance or regulations. It is through this anticipated regulatory process that all stakeholders will be able to offer their thoughts in a transparent manner about the interplay between ACA and the ADA. In view of the ADA’s 25th anniversary this year, NCD urges Congress to allow the EEOC the opportunity to provide clarification in the form of regulations or guidance prior to acting legislatively in a manner that runs contrary to the balanced compromises reached among stakeholders in negotiations that produced the bipartisan successes the ADA has enjoyed. It is sobering to think that, in the process of seeking to clarify the responsibilities of employers, the proposed legislation could have the unintended consequence of rolling back the protections of a law that Congress passed in a bipartisan fashion in 1990 as well as amended in a bipartisan fashion in 2008.We stand ready to be a resource to the Committee on this or related topics. Please do not hesitate to contact our Director of Legislative Affairs, Anne Sommers, at asommers@ncd.gov with any questions you may have. Respectfully, Jeff Rosen
Chairperson 1 Presidential Statement on the Signing of the ADA of 1990, 26 Weekly Comp. Pres. Doc. 1165 (July 30,
1990)2 U.S. Chamber of Commerce (2011) retrieved from:https://www.uschamber.com/press-release/us-chamber-applauds-bipartisan-work-eeoc-ada-amendments-regulations3 EEOC Charge Statistics, FY 1997-2014, retrieved from: http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm


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