The Americans with Disabilities Act prohibits discrimination in the workplace based on an employee’s disability where a qualified employee can perform the essential functions of a job with or without reasonable accommodation. The ADA prohibits employers from soliciting medical information from employees which could be used to discriminate on the basis of a disability. Other federal statutes, such as the Genetic Information Nondiscrimination Act, or GINA, and the Health Insurance Portability and Accountability Act, or HIPAA, likewise prohibit employers from obtaining or using medical information for improper purposes.

On the other hand, the Affordable Care Act permits employers to offer financial incentives to encourage employees to participate in wellness programs that promote healthful lifestyles, thereby lowering health insurance costs. The ACA provides an exemption from applicability of the ADA with respect to outcome-based wellness programs that meet certain standards. Notwithstanding this exemption, acting under the ADA, the Equal Employment Opportunity Commission has filed lawsuits against employers that have established wellness programs which, in the agency’s opinion, discriminate based on an employee’s disability. Such suits have been brought when employers withheld or withdrew health benefits based on an employee’s refusal to participate in a wellness program; when an employee’s employment was terminated because of a refusal to provide health-related information ostensibly sought in connection with a wellness program; and when employees who refused to provide health-related information faced financial penalties.

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