EEOC's wellness litigation strategy gets slapped around in Senate hearing

Republicans’ predicted assault on what some employers perceive as over-aggressive federal agency enforcement of employment laws may have just begun — and they haven’t even taken control of Congress yet. 
The Equal Employment Opportunity Commission (EEOC) got slapped around a little bit in a recent Senate committee hearing to confirm the nominations of Charlotte Burrows as a new EEOC commissioner and David Lopez as EEOC general counsel.
In introducing Burrows and Lopez, Senator Lamar Alexander (R-TN) called on the nominees to explain how they’d address the EEOC’s litigation strategy, which Alexander called “costly and time-consuming.”
Alexander’s entire diatribe during the hearing of the Senate’s Health Education Labor & Pensions (HELP) committee can be read here.
The senator, who’s expected to become the HELP committee’s chair come 2015, opined that the “EEOC has placed too much emphasis on litigating high-profile lawsuits” at the expense of “resolving its backlog of discrimination charges filed by individuals.”
He went on to say the EEOC currently has more than 70,000 unresolved discrimination charges pending.
“Given this backlog, I am disappointed that this EEOC has placed a strong emphasis on actions and lawsuits that do not address actual charges of discrimination brought to the agency by employees,” Alexander said.

Wellness lawsuits in the crosshairs

The senator was particularly critical of the EEOC’s three recent lawsuits against employer wellness plans.
Specifically, he said:

“I am also concerned that EEOC has not offered any guidance on voluntary employer wellness plans to encourage healthy lifestyle choices, yet is filing lawsuits against employers who offer these plans to employees on the basis of disability discrimination. 
“Wellness plans with premium discounts were specifically authorized in the health care law with strong bipartisan support — one of the few provisions of Obamacare with both Republican and Democrat buy in.”

In the lawsuits Alexander is referring to, the EEOC claims that the employers’ financial penalties levied against employees who refuse to take part in wellness activities — like health risk assessments and biometric screenings — are so steep that the penalties render the companies’ wellness programs involuntary.
And unless conducted as part of a “voluntary” wellness program, employers can only subject employees to medical inquiries that are “job-related and consistent with business necessity.” Any inquires made outside of those two provisions are viewed as discriminatory.
The problem in Alexander’s eyes — and the eyes of employers — the EEOC hasn’t released any specific guidance as to what kinds of penalties would be so steep as to render a wellness program involuntary.
“EEOC was scheduled to publish two proposed rules on wellness plans last June and invite comments on the proposals – but there has been no action,” Alexander said.
“These wellness plan lawsuits are sending a confusing message to employers – reliance on the health care law’s authorization of wellness plans does not mean you won’t get sued,” he added, before closing his remarks with:
“I look forward to learning how these nominees plan to address these issues and welcome them here today.”