The U.S. Equal Employment Opportunity Commission has released its Notice of Proposed Rulemaking (NPRM) on how Title I of the Americans with Disabilities Act applies to employer wellness programs that are part of group health plans. The NPRM is scheduled to be published in the Federal Register on April 20, 2015. The public may offer comments on the NPRM until June 19, 2015.

The EEOC acknowledges that guidance is needed on how wellness programs offered as part of an employer’s group health plan can comply with the ADA consistent with provisions governing such programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act. The Commission also offers a Fact Sheet for Small Businesses and a Question and Answer document.

The proposed rule would amend the EEOC’s ADA Title I regulations to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries or medical examinations. Related interpretive guidance would be changed also. 

Although the ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations, it allows such inquiries and examinations if they are voluntary and part of an employee health program.

The NPRM requires that if an employee health program seeks information about employee health or medical examinations, the program must be reasonably likely to promote health or prevent disease. Employees may not be required to participate in a wellness program, and they may not be denied health coverage or disciplined if they refuse to participate.

Wellness programs may not be used to discriminate based on disability. The proposed rule explains that under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs. This limit, the EEOC explains, is generally consistent with limits that HIPAA imposes on wellness programs. However, the ADA provides important safeguards to employees to protect against discrimination based on disability, the Commission notes. Therefore, medical information collected as a part of a wellness program may be disclosed to employers only in aggregate form that does not reveal the employee’s identity, and that information must be kept confidential in accordance with ADA requirements.

Additionally, employers may not subject employees to interference with their ADA rights, threats, intimidation, or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes. Finally, the NPRM states that individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.

NPRM also requires that employers provide employees a notice describing what medical information will be collected, with whom it will be shared, how it will be used, and the means by which it will be kept confidential. 

We will provide updates as the rulemaking progresses. Meanwhile, please contact your Jackson Lewis attorney if you have any questions about wellness programs or would like to submit comments to the EEOC.