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  4. Meeting of June 11, 2020 - Discussion of Notice of Proposed Rulemaking on Wellness Programs - Transcript

Meeting of June 11, 2020 - Discussion of Notice of Proposed Rulemaking on Wellness Programs - Transcript

 

PRESENT:

JANET DHILLON, Chair

VICTORIA A. LIPNIC, Commissioner

CHARLOTTE A. BURROWS, Commissioner

 

ALSO PRESENT:

SHARON FAST GUSTAFSON, General Counsel    

ANDREW F. MAUNZ, Legal Officer

BERNADETTE B. WILSON, Executive Officer

This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.

 

TABLE OF CONTENTS

 

AGENDA ITEM                     

1. Americans with Disabilities Act, Notice of Proposed Rulemaking on Wellness

 

PROCEEDINGS

1:00 p.m.

CHAIR DHILLON:  Good afternoon, everyone, and welcome to a meeting of the Equal Employment Opportunity Commission.  This meeting will now come to order.  A quorum is present.  This meeting was noticed and is being held in accordance with the requirements of the Sunshine Act.

Today's meeting is open to the public to listen to the Commission's deliberations and voting.  Welcome, and thank you to my fellow commissioners, to all EEOC staff, and to the members of the public who are participating by phone.  To access our closed captioning service, please go to www.eeoc.gov/newsroom and click on the link.

This marks the EEOC's second virtual Commission meeting.  A special thanks to the many employees throughout the agency who have worked diligently to set up this meeting, including my staff, the Office of the Legal Counsel, the Office of Information Technology, the Office of Communications and Legislative Affairs, the Executive Secretariat, and the staff of my fellow Commissioners' offices. 

Additionally, I would like to thank all of the EEOC employees for their work during these very challenging times.  EEOC employees have truly risen to the occasion, inspired by the Agency's commitment to civil rights and dedication to carrying out our mission.  They are truly stewards of the right to work free of discrimination, and I am inspired daily by their continued passion and work ethic.

Before moving to the business at hand, I want to highlight the EEOC's recent efforts to educate the public around COVID-19 and the implications on federal employment discrimination laws.  On March 27th, the Office of Legal Counsel published a webinar addressing various stakeholder questions about the ADA and other statutes the Commission enforces.  A link to the recording of the webinar, as well as the transcript, are available on our website. 

The Agency has also published and periodically updated a technical assistance document titled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  This document is also available on our website and was most recently updated this morning.

Now I would like to briefly explain the procedures for this meeting.  A verbatim transcript will be made of today's proceedings.  For that purpose, the meeting is being recorded.  We will post a transcript on the EEOC's website, www.eeoc.gov.  As the presiding officer I am responsible for regulating the course of this meeting and shall dispose of all procedural matters.  While this meeting is open to the public, remarks and questions will not be taken from the audience.

There is one item on our agenda today.  A representative from the Office of Legal Counsel will provide a summary of the item and be available to answer Commissioner questions.  Following the presentation, I will call on each Commissioner to address the matter at issue.  We will have two rounds of comments and questions from each Commissioner.  During these rounds, Commissioners may pose questions to the presenter and offer her own comments and observations. 

If a Commissioner seeks to amend an agenda item, she must offer that amendment while she has the floor.  If the motion to amend is seconded, we will move on to a debate on the proposed amendment.  After the amendment is voted on, we will resume debate on the underlying agenda item, which may or may not have been amended.

We are here this afternoon to consider the Notice of Proposed Rulemaking, Americans with Disabilities Act Wellness Regulations.  July 26th, 2020 will mark the 30th anniversary of the day that President George H.W. Bush signed the Americans with Disabilities Act into law.  Our meeting today to discuss draft ADA regulations nearly 30 years after the ADA's passage is a testament to the law's enduring relevance, and the challenges of applying the law in previously unforeseen ways.

The proposed NPRM reflects the efforts of the Office of Legal Counsel and my fellow Commissioners over a multi-year period to interpret the ADA's Application to Wellness programs, specifically, whether and to what extent, can employees be offered incentives to participate in wellness programs that require the disclosure of medical information.  At what point do incentives offered in exchange for medical information render a person's disclosure involuntary and therefore in violation of the ADA?

The EEOC's last attempt to answer this question was challenged in court successfully, and the incentive limits were struck down.  Since then, employers have been carefully watching to determine how to structure their wellness programs to be consistent with the requirements of the ADA.  I applaud the Office of the Legal Counsel's continued efforts, and those of my fellow Commissioners, to develop what I believe is a solid basis from which to solicit public comment.  I will now turn the meeting over to Joyce Walker-Jones, Senior Attorney Advisor for the ADA/GINA Division, Office of Legal Counsel, to address the NPRM.

COMMISSIONER BURROWS:  Madam Chair, this is Commissioner Burrows.  Before we proceed, I do have three privileged motions that take precedence over other business.  This first --

CHAIR DHILLON:  Yes, Commissioner Burrows?

COMMISSIONER BURROWS:  Is that -- the first motion is to offer a resolution and move that it be made a special order for the next meeting -- the resolution is as follows:  Resolve that the Commission shall hold a public meeting to address issues raised by the COVID-19 pandemic with the Americans with Disabilities -- under the Americans with Disabilities Act, and other laws within this Commission's jurisdiction.

CHAIR DHILLON:  Commissioner Burrows, I will take your motion to schedule a meeting on that topic under advisement.  What is your second motion?

COMMISSIONER BURROWS:  I believe it's entitled to a -- either a second or a vote.  But I don't think it can be postponed.

CHAIR DHILLON:  Commissioner Burrows, the Chair has the authority to set -- to set the time and place of Commission meetings, and therefore your motion is not in order.  What is your next motion?

COMMISSIONER BURROWS:  The -- to be clear, and so that the record is -- fully reflects the debate -- under our rules, such a motion is in order at this point in the debate, and the Commission has the ability to make that decision.  I will amend my motion by stating that it can be held at a time or place -- time and place and manner deemed appropriate by the Chair.  So the order does -- so the motion does not in any way change the decision of timing for such a debate.  And I believe that this is enormously important now for the Commission as it continues to issue guidance in this area, to inform ourselves and the American people about the ongoing pandemic.

CHAIR DHILLON:  Commissioner Burrows, while the Commission conducts its proceedings in accordance with Robert's Rules of Order, the exceptions are when those rules are inconsistent with the law or with Commission policy.  And in this case, the Chair sets the time and place of meetings.  So I will take your suggestion under advisement.  What is your second motion?

COMMISSIONER BURROWS:  Madam Chair, for the record, I believe that this is not appropriate under our rules.  I'll state that.  I do think it's important to continue with today's business so I will proceed.  However, I do think that the record needs to be clear that the Chair's statement, respectfully, misstates our rules here in the Commission as well the Robert's Rules of Order.

The second motion is also brought properly as a privileged motion.  And it would -- excuse me -- be -- the solemn resolution is moved that it be made a special order for the next meeting as follows: that at a time and place, to be determined by the Chair, resolved that the Commission as such should close a portion of its next meeting, pursuant to the Sunshine Act, Sections 5 USC 552 (b)(3) and (b)(6), as well as (b)(7), to address and vote on any litigation matters that have been pending for more than six months at that time.

CHAIR DHILLON:  Again, Commissioner Burrows, the time and place of meetings is established by the Chair.  What is your next motion?

COMMISSIONER BURROWS:  I believe I am entitled to a second.  Or at least a question as to whether or not there is a second.  But I will move on for purposes of continuing what I think is an important debate -- but note for the record that this, as well, is in contradiction of our rules.

I think that the last motion, again, is to have a privileged motion that we will have a resolution that the Commission shall hold a meeting in -- at a time and place to be determined by the Chair to examine the newly enacted conciliation pilot -- I have not seen it, so I can't describe it more than to say it was -- it took effect on May 29th of this year and to discuss the Commission's policy on conciliation.

CHAIR DHILLON:  Thank you, Commissioner Burrows.  I will take that under advisement.  I believe --

(Simultaneous speaking.)

CHAIRMAN BURROWS:  Again, I would -- I would -- preserve my previous objections on that issue.  Thank you.

CHAIR DHILLON:  Thank you.  Ms. Walker-Jones?  I will offer the floor to you.

MS. WALKER-JONES: Thank you. Chair Dhillon and Commissioners Lipnic and Burrows, thank you for the opportunity to participate in today's meeting.  My name is Joyce Walker-Jones and I am a Senior Attorney Advisor in the ADA/ GINA Policy Division in the EEOC's Office of Legal Counsel. 

I am here to discuss a rule that the EEOC is proposing to issue in response to the Court's decision in AARP versus EEOC that vacated a portion of our 2016 regulation describing the incentives employers could offer as part of wellness programs that ask employees questions about their health, and/or ask them to undergo medical examinations.

The proposed rule responds to the Court's determination that the EEOC has an obligation to interpret the ADA's explicit statutory requirement that an employee's decision to disclose protected medical information to a wellness program must be voluntary.  It also responds to the Court's findings that the EEOC failed to show that a 30-percent incentive limit is the appropriate measure for voluntariness.  For the reasons explained in this preamble, the proposed rule adopts the view that allowing too high of an incentive would make employees feel coerced to complete health risk assessments or undergo biometric screenings that are part of wellness programs to receive an award or avoid a penalty. 

The rule therefore states that, in order to be deemed voluntary, most wellness programs that include disability-related inquiries and/or medical examination -- which includes all participatory programs and health-contingent wellness programs that are not part of a health plan -- may offer no more than de minimis incentives to encourage employees to participate.

The proposed rule also states that an employer cannot require employees to participate in wellness programs that seek to obtain medical information; may not deny coverage under any of its group-health plans or take any adverse employment actions against employees who choose not to participate or fail to achieve certain health outcomes.

In addition to the voluntary requirement, the rule recognizes that the ADA includes another provision known as the Insurance Safe Harbor.  This provision applies to a subset of wellness programs that are part of an employer's health plan, and therefore are regulated by other federal laws.  Specifically, under the non-discrimination provisions of the Health Insurance Portability and Accountability Act, known as HIPAA, as amended by the Affordable Care Act health-contingent wellness programs may incentivize individuals for meeting or failing to meet a standard related to a health factor.  Examples include programs that reward individuals for walking, dieting, or exercising, or programs that use biometric screening or a health risk assessment to identify individuals with certain medical conditions or risk factors, such as high cholesterol or high blood pressure, and reward those at low risk or those who meet certain health outcomes.

The proposed rule interprets the ADA safe harbor provision as creating an exception to the de minimis incentive limit for the wellness programs that are part of, or qualify as, group health plans and to require employees to satisfy a standard related to a health factor to receive a reward or avoid a penalty.  Accordingly, where a health-contingent wellness programs uses the aggregate data it obtains to classify and administer employee health risk, and, complies with HIPAA's nondiscrimination requirement; the proposed rule permits the same level of incentives permitted under HIPAA, currently up to 30 percent of the total cost of coverage of a plan in which an employee is enrolled.

These programs, however, must still comply with the ADA's requirement that participation in wellness programs that include disability-related inquiries or medical examinations, must be voluntary.  This means that an employer may not require employees to participate, may not deny coverage under any of its group health plans or particular benefit packages within a group plan, generally may not limit the extent of such coverage, and may not take any other adverse action against employees who decline to participate or fail to achieve certain health outcomes.

Because the Commission recognizes concern -- employees' concerns about how their medical information may be used, the proposed rule includes strong confidentiality protections, and states that medical information collected through a wellness program, may be provided to an employer only in aggregate terms that do not disclose or are not reasonably likely to disclose the identity of specific individuals.  Employers also may not require employees to agree to the sale, exchange, sharing, transfer, or other disclosures of such information.

Finally, the proposed rule states that employers must comply in all respects with other federal laws that prohibit employment discrimination.  Thank you for your time, and I look forward to your questions.

CHAIR DHILLON:  Thank you.  I now offer the floor to Commissioner Lipnic for comments or questions.

COMMISSIONER LIPNIC:  Thank you, Madam Chair, and good afternoon everyone.  First of all, as to -- I do just want to comment on the motions that Commissioner Burrows offered.  And I would say that -- certainly, I think the information that the EEOC has been putting out during the coronavirus pandemic has been extraordinarily helpful to the regulated community.  I know all of us are getting many questions from our stakeholders about the application of the ADA and GINA and all of our laws.  And so certainly, at an appropriate time and with appropriate public health safety initiatives in place, I do think it would be useful for the Commission to have a meeting on the application of the ADA and GINA and all of our laws and everything that so many of the regulated community are dealing with in the pandemic.

Moving on to the matter at hand and our proposal for an NPRM, a Notice of Proposed Rulemaking, on the ADA, the Americans with Disabilities Act, and the application in particular to wellness programs.  And first of all, I want to thank Joyce Walker-Jones for her presentation, and I want to thank the many lawyers in our Office of Legal Counsel who have been working on this for quite a few years now.  And certainly, back around -- again, following the decision in the AARP lawsuit against the EEOC on our 2016 wellness rules, both for the ADA and for GINA.

I want to remind everyone sort of where we are in this process and -- so the process right now, and what we are voting on today, is a draft Notice of Proposed Rulemaking, simply to send it to the Office of Management and Budget and the Office of Information Regulatory Affairs to review the rule and offer their substantive critiques and comments.  And then, as our process works, that comes back to the Commission, depending upon what the feedback has been through OMB, and that includes interagency review.  And then back to the Commission again for another round.

So, that is -- that is the step we are at today.  We are not by any means advancing any final rule.  There are many steps to go in this process.  I also think that -- I'll second what the Chair said at the outset, that I do think the rule that has been -- the proposed rule that's been drafted now does provide a solid basis to solicit comments, and to get those comments from employers and the regulated community, and those groups that create wellness programs, from those employers who believe wellness programs are worthwhile to have for their employees, and certainly from the disability community and the advocacy groups, and certainly as we saw in the initial lawsuit from AARP; those who are concerned about what the appropriate boundaries are for the Americans with Disabilities Act and its application to wellness programs.

I also want to point out, though, that there is, in contrast to our 2016 rules -- and then the provision in particular, the incentive provision that was struck down by the District Court; there is a section of -- or there is a provision of wellness programs, or a type of wellness programs, that Congress in -- quite clearly in creating and amending HIPAA through the -- via the Affordable Care Act, intended to incentivize. 

And I think as a matter of good government, while certainly we have to be at the EEOC mindful of what the provisions are of our statutes and in this particular case here, the ADA; we cannot ignore the fact that Congress had a very deliberate section of -- or type of wellness program, those covered under group health plans, that they meant to incentivize. 

And finding the right balance and a way to do that and not ignoring what Congress wanted to do there I think is also something the EEOC has to be mindful of.  And I think that this latest draft, again, a Notice of Proposed Rulemaking draft, is a good faith attempt to do that

Those are the only comments I have, actually, Madam Chair.  And I have no questions at this time for Joyce Walker-Jones.  Thank you.

CHAIR DHILLON:  Thank you Commissioner Lipnic.  Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you and good afternoon.  I wanted to thank the Chair and Commissioner Lipnic and their staffs -- Joyce Walker-Jones, of course, and our other colleagues in the Office of Legal Counsel and my own staff for the considerable work that went into the proposed rule we consider today.

The Commission considers this important proposal, of course, in the midst of a pandemic when, more than ever, employees need protection from disability discrimination.  The proposed rule gives its blessing to incentive-based wellness programs that would force employees to choose between surrendering their most private medical information or paying health insurance premiums they simply cannot afford.

With the nation facing unprecedented public health and economic crises due to the COVID-19 pandemic, we should not adopt a rule that makes working families even more vulnerable.  I had truly hoped to support this rule, so the Commission could issue it unanimously for review by OMB and hoped to make a public comment after that; but this rule carries unacceptably high risks to the medical privacy of every employee in America, whether or not that employee has a disability. 

Moreover, the rule impermissibly conflicts with the language of the Americans with Disabilities Act that we are bound to follow, as well as this Agency's own long-standing legal interpretation, and the Congressional mandate that the ADA should be interpreted broadly to fulfill the law's remedial purpose.

For these reasons I cannot support the rule in its current form, and I urge my colleagues to reject it or approve amendments to remedy the problems I've identified.  And these are three principal concerns.

First, it misreads the ADA by applying the statute's safe harbor provision to exempt from ADA coverage health-contingent wellness programs that are part of, or qualify as, group health plans.  Health-contingent wellness programs penalize persons with disabilities for not being as well as other workers, and make it even more difficult for people with disabilities to obtain employment on fair and equal terms.

My second concern is the lack of informed consent.  The draft rule would let employers collect employees' deeply private medical information without saying exactly how that information would be used, how long it would be kept, or even who would have access to it.  Under the ADA, employers can collect medical information through a wellness program only if the employee voluntarily agrees to provide it.  But an employee's decision cannot be truly voluntary unless he or she knows exactly what they're agreeing to.

My third concern is that the rule should better safeguard employees' medical data from inadvertent disclosure to, or access by, unauthorized parties.  Let me explain more fully how the draft rule misreads the ADA's safe harbor provision.  It takes the untenable position that every wellness program tied to an employer-sponsored health plan, no matter how it's designed, or even whether it was adopted with a discriminatory purpose, falls within the ADA's safe harbor, and therefore it's completely outside the reach of the ADA.  That's incorrect and contradicts this Commission's longstanding, carefully reasoned interpretation of the safe harbor. 

The ADA prohibits employers from subjecting employees to medical examinations and inquiries unless they're job-related and consistent with business necessity.  An exception to this rule allows employers to make such exams and inquiries to your health program, but only if participation is voluntary.

The ADA's text and legislative history clearly treats wellness programs as a separate category from health benefit plans.  The safe harbor exempts traditional employer-sponsored insurance from the ADA, while ADA section 11212(d)(4)(B) treats wellness programs as a special exception to the ADA's limits on medical exams and inquiries.  Applying that safe harbor to any category of wellness programs is impermissible under basic rules of statutory interpretation because it would render this section superfluous.

The legislative history indicates that the exception for employer health programs was included to allow the continuation of voluntary corporate wellness programs which help reduce the cost of medical care.  So Congress already comprehensively answered the question of when employer wellness programs may conduct -- when employer wellness programs can conduct these exams or make medical inquiries.  Because the draft misreads the ADA by applying the safe harbor to certain categories of wellness programs, I offer an amendment circulated earlier as Amendment 5, to strike proposed 29 CFR 1630.14 (d)(5) and replace it with text consistent with EEOC's longstanding interpretation of the safe harbor rule.

CHAIR DHILLON:  Thank you Commissioner Burrows.  Is there a second to this motion to amend?

COMMISSIONER LIPNIC:  Madam Chair, this is Commissioner Lipnic.  Just so I understand, is the second we're being asked for to adopt the amendment, or we're seconding for purposes of debate?

CHAIR DHILLON:  I'm asking for a second for purposes of debate.  We would debate the amendment -- proposed amendment -- if there is a second.  And then we would move to a vote on the amendment.  So there will be two votes.

COMMISSIONER LIPNIC:  Okay.  So I will --

(Simultaneous speaking.)

COMMISSIONER LIPNIC:  Thank you.  I will second for purposes of debate.  Thank you.

CHAIR DHILLON:  Thank you, Commissioner Lipnic.  Commissioner Burrows, do you have anything further to add in support of your amendment?

COMMISSIONER BURROWS:  I would say that Commission 5 -- Amendment 5's purpose is really to correct the flawed conclusion that the ADA safe harbor provision provides -- applies to all health-contingent wellness programs that are connected to an employer's group health plan.  The rule's broad application of the safe harbor provision in this manner is improper for four reasons.

First, application of the safe harbor provision to wellness programs contravenes the plain text of the ADA.  As I noted previously, the ADA prohibits employers from subjecting employees to medical exams and inquiries.  There is a limited exception that allows employers to make such inquiries, or conduct examinations, as part of an employee health program, provided that participation is voluntary.  The House report and the other legislative history clearly explain that this is a separate -- and that health programs are a separate category from the insurance -- the insurance that is protected by the exception under the safe harbor.  And that -- this is included to allow the continuation of voluntary corporate wellness programs that help reduce the cost of medical care.  So there's already a framework, and the rule that we are considering today is inconsistent with it.

Second, the ADA's legislative history establishes that the safe harbor provision was intended to apply only to the traditional insurance practices of underwriting, classifying risks, and administering risks, not to creep in employer-sponsored wellness programs.  As EEOC's 2016 Final Wellness Rule notes, at the time the ADA was passed, health plans were allowed to engage in some practices no longer permitted today.  Group health plans were allowed to charge individuals in the plans higher rates based on increased risks associated with their medical conditions.

The safe harbor was drafted to allow insurance companies to use those practices, provided that any decisions to treat people differently because of their medical conditions were based on real risks and costs associated with those conditions.  The proposed rule argues that the terms "classifying risks" and "administering risks" in the safe harbor provision could include certain wellness programs.

However, this analysis completely disregards the ADA's legislative history, which establishes that the safe harbor was drafted to allow the insurance industry and sponsors of insurance plans to treat individuals differently based on disabilities, but only if the differences could be justified by increased risks and costs based on sound actuarial data.  Nothing in the legislative history suggests that Congress meant to have the safe harbor apply to wellness programs.  And indeed, everything in the legislative history suggests the opposite.

Third, even if the safe harbor might apply to certain wellness programs, EEOC has argued and the courts upheld, that it must be asserted by an employer as a form of defense.  Applying the safe harbor to all health-contingent wellness programs that are connected to an employer's health plan, sight unseen, improperly exempts all such programs from legal challenges under the ADA. 

This Commission has no power to create such a blanket exemption for certain types of wellness programs under the safe harbor.  Application of the safe harbor can only be made after examining a specific program with the facts of a specific increase.

And fourth, I'd say that the proposed application of the safe harbor to wellness programs contradicts nearly 30 years of our rules and policy guidance and litigation documents.  And it does so without sufficiently explaining this huge change.  The EEOC's ADA regulations and guidance have long provided that the safe harbor only applies to processes of the insurance industry with respect to the use of sound actuarial data to make insurability and cost determinations. 

EEOC has never applied the safe harbor to wellness programs and the Agency has consistently argued against doing so in its litigation filings.  The draft will fail to adequately bring the rationale for departing from this long-held tradition, and also fails to fully address inconsistencies with the legislative history.

And so I fear that a -- the view in court will likely find this rule arbitrary and capricious, as it did its predecessor.  For these reasons, the draft rule should reaffirm that the safe harbor does not affect the employer's decision to offer rewards or impose penalties in exchange for employee's participation in a wellness plan.

CHAIR DHILLON:  Thank you, Commissioner Burrows.  Commissioner Lipnic, do you have any comments to offer with respect to Commissioner Burrow's amendment -- proposed amendment?

COMMISSIONER LIPNIC:  Yes, Madam Chair.  Just a couple of things.  First of all, I appreciate all the work that my colleague, Commissioner Burrows, has put into this.  But I must respectfully disagree in terms of the application of the safe harbor.  And the main thing that I would point out is, again -- sort of two things.  One, we are a long way from -- in terms of where we are in this process -- from any challenges about whether a rule, a proposed rule, or the preamble explanation is -- could be determined to be arbitrary and capricious under an APA challenge.  So, again, I just remind where we are in this process about sending this rule to OMB for review.

And secondly, I would say that the EEOC's longstanding position, as my colleague rightly points out, has been subject to challenge in court.  And at least one court found that there was a correct application of the ADA safe harbor provision for purposes of governance over an employer wellness plan. 

So, I do think -- and I guess the third thing I would add is again, you know, presumably Congress knows what it is doing when it is legislating.  And there, again, is a slice of wellness plans covered by employers' group health plans that Congress clearly intended for there to be some ability to incentivize.  With that I yield back.

CHAIR DHILLON:  Thank you, Commissioner Lipnic.  Commissioner Burrows, do you have anything further to add in support of your motion to amend the NPRM?

COMMISSIONER BURROWS:  Yes, I'd like to address the remedial purpose of the Act.  And you know, I would also note that the ruling is not -- this huge change, really, is not required by anything in the prior decision that struck down the predecessor rule.  And it -- you know, again, even if the -- you know, I recognize the difference of opinion, and respect it.  But even if my colleagues believe the proposed rule represents a plausible reading of the ADA's amended safe harbor provision, the result of that reading clearly conflicts with the ADA's purpose.  That purpose is plain in both the original enactment of the ADA in 1990 and the 2008 ADA Amendments Act.

In enacting the ADA Congress intended, and I quote, to provide a clear and comprehensive national mandate to the elimination of discrimination against individuals with disabilities, and to ensure that the federal government plays a central role in enforcing those standards.  The proposed rule's reading of the ADA safe harbor provision exempts an entire category of the employer-sponsored wellness programs from coverage under the ADA, and violates not just this plain text but also the purpose that we're charged with enforcing.  And there are real world consequences, especially for some of the most vulnerable workers, because health-contingent wellness programs are exactly those that fall most heavily on these workers.        When employers condition financial incentives or penalties on meeting health criteria, like a specific weight, body mass index or cholesterol level, workers who cannot meet those criteria are forced to pay higher costs for healthcare.  And unfortunately, through no fault of their own, those workers will find such benchmarks unobtainable in many instances.  As noted in the letter the Commission received just this morning from the Consortium for Citizens with Disabilities, persons with disabilities have the lowest rate of employment of any group tracked by the Bureau of Labor Statistics.  And this pandemic has had a particularly devastating effect on these workers.

Many low-income workers and workers of color, for example, face numerous socioeconomic failures including limited access to healthy, affordable foods and limited time to exercise.  Further, people of color are often disproportionately affected by factors such as stress, high blood pressure, diabetes -- all of which predispose them to higher instances of heart disease.  Older workers are often more likely to have underlying conditions that make it more difficult, if not impossible, to meet one-size-fits-all health benchmarks.  As a result, healthcare has become even more unaffordable and inaccessible for those who need it the most.  That would be both counterproductive and discriminatory.

If there is one thing we can all agree on, I think, it's that healthcare is needed now more than ever.  So far, COVID-19 has tragically killed more than 115,000 Americans.  And by all accounts, that number will continue to rise for the foreseeable future.  For those lucky enough to still be employed, health insurance is something families literally cannot afford to lose.  And they cannot afford to pay any more for it either.  In fact, according to a recent study, one in seven Americans would not seek coronavirus treatment because it, “costs too much”.  With so many Americans concerned about the health of loved ones, health insurance should be a source of relief, not another source of worry.

The purpose of ADA, again, is to expand employment opportunities for everyone, particularly individuals with disabilities and potentially disabling medical conditions like cancer, heart disease, diabetes.  The Commission's proposed interpretation of safe harbor would allow employers to penalize those who are unable to meet health criteria set by their employers and violates the purpose of the ADA, as well the letter.  I urge my colleagues to rethink the current proposal and to join in this amendment.

CHAIR DHILLON:  Thank you, Commissioner Burrows.  Commissioner Lipnic, do you have anything further to add?

COMMISSIONER LIPNIC: Nothing further, Madam Chair.

CHAIR DHILLON:  Thank you.  So we will now vote on Commissioner Burrows' amendment which, in the pre-circulation, was labeled number 5.  For purposes of clarity of the record, I will call for the vote by roll call.  So Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  I vote yay.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  I vote no.

CHAIR DHILLON:  And I vote no.  So the motion to amend fails.  Commissioner Burrows?

(No audible response.)

CHAIR DHILLON:  Commissioner Burrows, do you have anything further to add?

COMMISSIONER BURROWS:  Thank you, Madam Chair, I do.  I am wondering if it makes sense to wait with respect to the main debate for the second round, given that there's only a few more minutes of the first round -- as I calculate my time.

CHAIR DHILLON:  All right, thank you.  So I will now offer my comments.  First of all, I would like to echo my fellow Commissioners' expressions of appreciation to the Office of Legal Counsel, and especially to Joyce Walker-Jones.  They have been working on these very complicated issues for a very long time.  And I believe that the Commission is very fortunate to have them and their talents.  It has truly been due to their tenacity and their patience that we have arrived at where we are today. 

As Commissioner Lipnic noted, this is first and foremost a notice of proposed rulemaking.  The draft regulations we are considering here today will be, pending OMB approval, subject to public notice and comment.  In fact, we actually solicit comments in the NPRM on specific issues with which we ourselves are continuing to grapple.  No doubt we've touched on some of these today and will continue to do so in the months ahead. 

Having said that, I fully support the proposed NPRM as written because I believe it represents a well-considered, thoughtful launchpad from which to reinvigorate the EEOC's work in this area.  And with that, we will go to our second round of Commissioner comments and questions.  And we will start with Commissioner Lipnic.

COMMISSIONER LIPNIC:  Thank you, Madam Chair.  Actually, I don't think I have any other questions at this time.  Thank you.

CHAIR DHILLON:  Thank you.  Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you, Madam Chair.  I'd like to note that many wellness plans, whether they penalize employees based on health conditions or simply require participation, collect highly sensitive medical data from employees.  In this age of rapid technological and medical advances, it's really impossible to know for sure how an employee's life or that of their family members could be affected in the future by disclosing such information to their employer.

But we do know that medical data is valuable and it's a frequent target for hackers who do not have employees' best interests at heart.  As a result, if an employer asks workers to fork over medical data the employers should be required to provide some notice of basic facts about what data it is collecting, who will have access to that data and how the data will be protected.  That's the only way we can satisfy the statutory requirements that an employee's participation in a wellness program that includes medical exams or disability-related inquiries is truly voluntary.  After all, you can't -- you can't really volunteer to do something if you don't know what that something is.

It's also important to note that HIPAA, the federal law that prevents healthcare providers from revealing employee medical data, does not apply to employers because employers are not covered entities under HIPAA.  We can ensure that employees have this protection with a minimal burden on employers because we've done much of the work for them already.  The 2016 ADA Wellness Rule provided a sample notice that employers can use to ensure compliance with the rule, were we to adopt a requirement that there be a notice providing basic backgrounds on the medical data collected. 

So accordingly, I offer Amendment 1 to strike from the draft rule the last paragraph on page 34 and replace it with text to require that employees receive notice regarding medical data employees collect through the -- employers, rather, collect through wellness plans.

CHAIR DHILLON:  Thank you Commissioner Burrows.  So you have made a motion for the Commission to consider your Amendment Number 1.  Is there a second to your motion?

(No audible response.)

CHAIR DHILLON:  Hearing no second, the motion to amend fails.  Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you, Madam Chair.  I move to amend the draft as specified in Amendment 4.

CHAIR DHILLON:  There is a motion on the floor to amend the NPRM, entitled Amendment Number 4.  Is there a second to this motion?

COMMISSIONER LIPNIC:  Second.

CHAIR DHILLON:  Commissioner Burrows, do you have any comments to offer on your amendment -- proposed amendment?

COMMISSIONER BURROWS:  Thank you, Madam Chair.  I would say only that because medical data is so incredibly sensitive, employers must ensure that there are sufficient security policies in place to prevent unauthorized parties from accessing employees' private medical information. 

The ADA clearly requires that employers keep such data confidential when they receive medical information in connection with their request for disability-related accommodations.  The draft rule already extends that same requirement to medical information collected as a part of a participatory wellness plan.  And Amendment 4 would ensure that this requirement, already in the draft rule, is also observed when an employer uses a third-party vendor to administer its wellness program.

Although the proposed rule references HIPAA's privacy rule, as noted earlier, HIPAA does not apply to employers' collection of medical data from employees, and generally does not protect employee health information maintained by an employer.  So it's critical that the draft rule include some requirement that an employer who uses a third-party vendor to administer its wellness program is familiar with that vendor's security policies. 

Corporate wellness programs often use health and fitness tracking devices and applications produced and supported by many different independent companies, and each device manufacturer and other independent vendor has its own privacy policy -- or sometimes no policy at all -- which may be subject to change by the company at any time without notice.  Large databases containing health information are an attractive target for hackers, and employers who collect health and fitness data are particularly susceptible to security breaches. 

As a result, there is a significant risk of private medical information falling into the wrong hands.  A data breach could result in medical identity theft, or personal health information being sold to advertisers, hackers, or data brokers.

This amendment is incredibly modest.  It would not require the employer to guarantee that any third-party recipient of employee medical data keep that data safe, nor do they make the employer liable if the third party failed to do so.  It merely requires that the employer ask reasonable questions up front.

CHAIR DHILLON:  Thank you Commissioner Burrows.  Commissioner Lipnic, do you have anything to add concerning Commissioner Burrows' proposed amendment?

COMMISSIONER LIPNIC:  No, Madam Chair.

CHAIR DHILLON:  Thank you.  So we will proceed to a vote.  Again, we will do it by roll call for purposes of clarity of the record.  Commissioner Burrows, how do you vote on your proposed amendment which was labeled number 4 prior to the meeting?

COMMISSIONER BURROWS:  I vote aye.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  I vote aye.

CHAIR DHILLON:  And I vote aye as well.  So the amendment is adopted.  Commissioner Burrows?

COMMISSIONER BURROWS:  I would just like to conclude by saying that passage of the Americans With Disabilities Act was a critical step in our nation's progress towards fulfilling its most fundamental ideals of equal justice for all.  This law has literally removed barriers and opened doors for employees with disabilities so that they can be fully included in our society, and it has made America a stronger, better and fairer land. 

As we approach the Act's 30th anniversary next month, we must not turn back the clock on that progress.  This agency is charged by Congress with the duty to safeguard that progress by interpreting and implementing the law in a way that makes real the law's broad, remedial purpose.

The rule we debate today will have enormous consequences for the lives of working men and women across the region.  As employees face the twin threats of the pandemic and its related financial uncertainties, the impact our actions will have on them must be front and center.  I appreciate that we have a difference of opinion on whether the rules’ interpretation of a safe harbor is permissible. 

But Congress has said time and again on a bipartisan basis that the ADA must be read broadly to affect its purpose of ending discrimination based on health and disability so that employees may be judged by merit alone.  This rule does the opposite by allowing an employer to penalize workers simply because they can't meet an ideal weight or some other health standard.  And it would do so at a time when employees can most -- when employees can least afford it and most need the Agency's protection.

I believe the proposed rule is wrong as a matter of law and policy and I strongly urge my colleagues and the Commission to reject it.

CHAIR DHILLON:  Thank you Commissioner Burrows.  At this point, the rounds of Commissioner comments and questions have concluded.  So I will move to adopt the ADA NPRM Wellness Regulation as amended by Amendment Number 4 at this meeting.  Is there a second?

CHAIR LIPNIC:  Second.

CHAIR DHILLON:  We will go by roll call vote again for purposes of clarity of the record.  Commissioner Lipnic?

COMMISSIONER LIPNIC:  I vote aye.

CHAIR DHILLON:  Commissioner Burrows?

COMMISSIONER BURROWS:  Nay.

CHAIR DHILLON:  And I vote aye, in favor.  So the motion has passed by a vote of two to one.

I would like to thank the Office of Legal Counsel and Commissioner Lipnic and Commissioner Burrows for your remarks and your thoughtful comments, and thank all the members of the public who were able to join us on this call today.

The meeting is now adjourned.  Thank you.

(Whereupon, the above-entitled matter went off the record at 2:03 p.m.)