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«CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA RANDEL K. JOHNSON 1615 H STREET, N.W. VICE PRESIDENT WASHINGTON, D.C. 20062 LABOR, IMMIGRATION & ...»

-- [ Page 1 ] --

CHAMBER OF COMMERCE

OF THE

UNITED STATES OF AMERICA

RANDEL K. JOHNSON 1615 H STREET, N.W.

VICE PRESIDENT WASHINGTON, D.C. 20062

LABOR, IMMIGRATION & EMPLOYEE 202/463-5448 · 202/463-3194 FAX BENEFITS June 19, 2015 Ms. Bernadette B. Wilson Acting Executive Secretariat U.S. Equal Employment Opportunity Commission 131 M. St, NE Washington, D.C. 20507 Re: RIN 3046–AB01; Notice of Proposed Rulemaking Regarding How the Americans with Disabilities Act Relates To Employer Wellness Programs

Dear Ms. Wilson:

The U.S. Chamber of Commerce (the “Chamber”) is pleased to provide these comments in response to the Notice of Proposed Rulemaking (the “Proposed Rule”) that the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Commission”) published in the April 20, 2015 edition of the Federal Register. The Proposed Rule purports to set forth obligations and restrictions upon employers who offer wellness program incentives to their employees under the Americans With Disabilities Act (“ADA”).

The Chamber is the world’s largest business federation, representing more than three million businesses and organizations of every size, sector, and region. More than 96 percent of the Chamber’s members are small businesses with 100 or fewer employees, 70 percent of which have 10 or fewer employees. Yet, many of the nation’s largest companies are also active members. We are particularly cognizant of the problems of smaller businesses, as well as issues facing the business community at large. Besides representing a cross-section of the American business community in terms of number of employees, the Chamber represents a wide management spectrum by type of business and location. Each major classification of American business – manufacturing, retailing, services, construction, wholesaling, and finance – is represented. Also, the Chamber has substantial membership in all 50 states.

The Chamber has long championed the adoption, expansion, innovation, and diversification of workplace wellness programs. For example, the Chamber – as a leader in the U.S. Workplace Wellness Alliance – was instrumental in passing accompanying resolutions in the House and Senate in 2008 recognizing the importance of workplace wellness and which designated the first week of April as “National Workplace Wellness Week.

–  –  –

April 7, 2015 – emphasized innovative workplace wellness programs and strategies to influence positive behavior change, among other workplace wellness-related topics. The Chamber has also issued several publications which promote workplace wellness programs, and such programs were featured in our 2013 report, “Health Care Solutions from America’s Business Community: The Path Forward for U.S. Health Reform.” Simply put, wellness programs are both effective and popular. Indeed, we are already seeing how wellness programs provide positive benefits for both employers and employees.

According to a recent study published in the preeminent journal, Health Affairs, authors Katherine Baicker, David Cutler, and Zurui Song calculated a return on investment of $3.27 for medical cost savings and $2.73 for absentee reduction for every dollar spent on wellness programs. 1

I. Overview

For more than six years, the EEOC has sent confusing signals regarding workplace wellness program incentives. In early 2009, the EEOC indicated that it would follow the HIPAA standard for determining voluntariness under the ADA.2 Roughly three months later, the EEOC rescinded that letter without any explanation.3 Since then, the Commission has remained largely silent on what it views as “voluntary” workplace wellness program incentives under the ADA and GINA, while at the same time it has filed high-profile lawsuits against employers challenging such incentives. Currently, the EEOC relies on a guidance document issued in 2000, which states that a workplace wellness program is voluntary as long as an employer “neither requires participation, nor penalizes employees who do not participate.”4 The EEOC’s “for it before it was against it” treatment of and litigation against workplace wellness program incentives has only created more confusion for employers and employees alike.

Now, amidst significant criticism from the employer community and Congress for its recent litigious actions, EEOC has issued a regulatory proposal on workplace wellness programs. 5 According to the Proposed Rule, “the Commission believes that it has a responsibility to interpret the ADA in a manner that reflects both the ADA’s goal of limiting employer access to medical See Workplace Wellness Programs Can Generate Savings, available at http://content.healthaffairs.org/content/29/2/304.full.pdf+html.

See January 6, 2009 letter, “ADA: Disability Related Inquiries and Medical Exams/Mandatory Clinical Health Risk Assessment” available at http://pdfserver.amlaw.com/cc/WellnessEEOC2009.pdf.

See March 2, 2009 letter, “ADA: Disability-Related Inquiries and Medical Examinations; Health Risk Assessment” available at http://www.eeoc.gov/eeoc/foia/letters/2009/ada_disability_medexam_healthrisk.html (last visited March 16, 2015).

U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) at Q. 22 (last visited March 16, 2015).





On January 29, 2015, the Senate Committee on Health Labor and Pensions held a hearing entitled,” Employer Wellness Programs: Better Health Outcomes and Lower Costs,” and on March 24, 2015, the House Subcommittee on Workforce Protections held a legislative hearing on, among other bills, H.R. 1189, “Preserving Employee Wellness Programs Act.” Ms. Bernadette B. Wilson June 19, 2015 Page 3 information and HIPAA’s and the [ACA]’s provisions promoting wellness programs.” These goals do not conflict with the underlying statutory authority of the ACA and are consistent with previously unified federal policy supporting these programs, as recently articulated by the June 3, 2013 Final Rules issued by the Departments of Treasury, Labor and Health and Human Services (“Tri-Agency Regulations”). 6 However, several provisions within this Proposed Rule do not achieve these stated goals and will instead significantly hinder the promotion and successes of workplace wellness programs.

As set forth in detail below, the Chamber believes that the EEOC’s approach to restricting workplace wellness program incentives is fundamentally flawed. The Proposed Rule, if promulgated, will discourage employers from instituting or sponsoring workplace wellness programs – a tool authorized by Congress in amending the Health Insurance Portability and Accountability Act (“HIPAA”) through the Patient Protection and Affordable Care Act (“ACA”) – to improve employees’ health and lower employees’ health care costs. With this Proposed Rule, the EEOC not only exceeds its jurisdiction and authority under the ADA, but the Commission also contradicts both the text of the ACA and the Tri-Agency Regulations.

In addition, the Proposed Rule disregards a longstanding statutory safe harbor provision, adopts an unprecedented position limiting the incentives available to employees and their families, and potentially unlawfully imposes an unrelated “affordability” requirement onto the ADA. The EEOC’s choice to take a piecemeal approach in promulgating rules regarding the possible application of ADA, GINA, Title VII and ADEA to elements of workplace wellness programs yields an unworkable regulatory scheme. Not only does this type of segmented approach fail to address wellness programs incentives in a holistic manner, it also prolongs the confusion for employers as to what compliance requires. Accordingly, the Chamber requests that this rulemaking be held in abeyance until the GINA notice of proposed rulemaking (“GINA NPRM”) is issued, followed by a re-opening of the comment period for both proposals that runs for 90 days after the issuance of the GINA NPRM.7 The EEOC’s jurisdiction over this issue is restricted to its statutory mandates under the ADA and GINA. Specific to the ADA, the EEOC’s jurisdiction only covers inquiries and disclosures of medical information to employers. Otherwise, the EEOC does not have the statutory authority – nor the health care expertise – to implement various provisions of this Proposed Rule.

The authority to establish health care policy belongs to Congress and the agencies designated by the underlying statutes. We strongly contest the EEOC’s attempt to simply disregard the statutory framework and assert authority where it has none.

–  –  –

The Proposed Rule will have a chilling effect on the development and implementation of innovative workplace wellness programs, contrary to the intent of Congress, the text of the ACA, the Tri-Agency Regulations, the ADA, and the Administration’s stated position. While the ACA strengthens and promotes employer-sponsored wellness programs, this Proposed Rule weakens them and impermissibly allows the EEOC’s interpretation of the ADA to override the lawfulness of legitimate programs and dismiss statutory language enacted by Congress and promulgated by Cabinet-level agencies.

With health care costs continuing to rise, along with rates for obesity and other chronic diseases, workplace wellness programs have served as a meaningful mechanism to encourage and reward positive behavior and healthy life choices. Congress was clear in the ACA. The Administration was clear in the Tri-Agency Regulations promulgated to implement that law. And the White House has again reiterated its support for these programs. 8 But apparently these endorsements are not enough for the EEOC. Whether through litigation not authorized by the Commission or through the Proposed Rule, the EEOC continues to send a confusing message to employers: reliance on the text of the ACA or the Tri-Agency Regulations does not insulate employers from potentially massive investigations and litigation for offering ACA-compliant wellness programs that provide monetary rewards. This is not appropriate and the result is untenable. Accordingly, we insist that any final rule adopted by the EEOC relating to workplace wellness programs be harmonized with the existing federal standards under ACA, HIPAA and the Tri-Agency Regulations.

II. Several Provisions of the Proposed Rule are Outside the Scope of the EEOC’s Limited Jurisdiction and Rulemaking Power The “exercise of regulatory authority by agencies must be rooted in a grant of such power by the Congress.” See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281 (1979). Congress authorized the EEOC to promulgate substantive regulations under the ADA.9 Under the ADA, medical examinations and/or inquiries (including biometric screening) are not permitted unless such

inquiries are voluntary.10 Specifically, the ADA provides:

–  –  –

The ADA does not define the term “voluntary.”12 The sole issue for the EEOC to address under the ADA in this instance is limited: do certain incentives permitted by the ACA and HIPAA, which are tied to a medical examination or inquiry, violate the ADA’s requirement that such medical examinations or inquiries be voluntary? Instead of limiting its analysis to that isolated question, EEOC attempts to regulate several components of workplace wellness programs that go well beyond EEOC’s mandate and jurisdiction. As described more fully below, the EEOC should limit any final regulation to issues within its authority.

A. The Proposed Rule That States An “Employee Health Program” Must Be “Voluntary” Misreads The ADA The Proposed Rule confuses the ADA’s statutory text and attempts to shift the proper analysis for whether a medical examination is voluntary to whether an employee health program that includes medical examinations is voluntary. That position misstates the ADA, and as described above, the EEOC has no authority to redraft the statute in such a manner.

The Proposed Rule’s Preamble provides:

–  –  –

To illustrate that this confusion was not a drafting error, the Proposed Rule throughout the Preamble, proposed regulatory text and interpretive guidance, repeatedly states the EEOC’s position

that an employee health program must be voluntary. Specifically, Section 1614(d)(2) provides:

–  –  –

In the Proposed Rule, “voluntary” modifies “employee health programs” while in the ADA, “voluntary” modifies “medical examinations.” Indeed, the concept of a “voluntary employee health program” is nowhere to be found in the ADA’s statutory language. Simply put, the concept is wholly distinct from the ADA’s statutory language. Similarly, the term “voluntary wellness program” is not contained in GINA, either.15 This overreach is emblematic of the Proposed Rule as a whole; as EEOC proceeds through the rulemaking process it must limit itself to the narrow inquiry of whether a medical exam or inquiry is indeed voluntary.

B. The EEOC Has No Authority to Examine Whether A Wellness Program Is “Reasonably Designed” The Proposed Rule defines a previously undefined term – “employee health program” – while importing certain requirements related to health-contingent wellness program contained in the ACA and the Tri-Agency Regulations promulgated by agencies that actually have the authority and expertise necessary to interpret such a term. Yet, even the proposed definition strays from the requirements adopted by the ACA and the Tri-Agency Regulations. Under the ACA, a wellness program is a “program of health promotion or disease prevention.”16 Per the ACA and HIPAA,

only a health-contingent wellness program must be “reasonably designed,” which means:

–  –  –

42 U.S.C. § 2000ff-1(b)(2)(B). Under GINA, an employer may collect genetic information as part of a wellness plan where the employee provides prior, knowing, voluntary, and written authorization, among other requirements.

Regardless, the EEOC steadfastly refused to address GINA specifically in the Proposed Rule. See Proposed Rule at Footnote 3.



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