The Equal Employment Opportunity Commission came under fire during a U.S. Senate committee hearing on employer-sponsored wellness programs Thursday, with one witness calling on Congress to end the “sorry state of affairs” and uncertainty that have resulted from EEOC lawsuits against some employers with incentive-based wellness programs.

“Employers face the threat of EEOC investigations and lawsuits, even if they structure their wellness plans to comply fully with the Affordable Care Act. And after a nearly six-year examination, the Commission has failed or refused to explain how it believes a wellness plan may be lawful,” said Eric Drieband, partner in law firm Jones Day, during his testimony before the Senate Committee on Health, Education, Labor & Pensions.

“The EEOC’s flip-flopping, its investigations and litigation perpetuate confusion and uncertainty. None of this serves the public good and if the executive branch of the government will not end this sorry state of affairs, then Congress should do so by enacting legislation,” he added.

Also see: Industry lauds EEOC court decision, wellness battle continues

Last October, the EEOC filed a lawsuit against Honeywell over its wellness program, claiming the program violates the Americans with Disabilities Act and Genetic Information Nondiscrimination Act by imposing penalties on employees who decline to participate in the company’s biometric screening program.

Dr. Catherine Baase, chief medical officer for The Dow Chemical Company, testifying on behalf of Dow and the American Benefits Council, said consistent federal policy is necessary. “I understand why employers are concerned,” she said. “Employers should not have to face this uncertainty.”

Despite employer concerns, the ADA and ACA do co-exist easily, according to Jennifer Mathis, director of programs at Bazelon Center for Mental Health Law, who testified on behalf of the Consortium for Citizens with Disabilities. Still, she expressed significant concerns about the potential of some wellness programs to discriminate against individuals with disabilities if applicable laws like the ADA are not followed.

“We hope the EEOC will soon issue guidance or regulations to clarify the ADA’s application to wellness programs. Such clarification would benefit both employers and employees,” she said.

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