Yesterday, the Equal Employment Opportunity Commission (“EEOC”) issued a proposed rule regarding how the Americans with Disability Act (“ADA”) applies to employee wellness programs.  The EEOC’s proposal is a welcome respite from positions it recently has taken in litigation.  

In brief, if adopted as written, the proposed rule would clarify that the ADA permits: voluntary wellness programs that are employee health programs (i.e. reasonably designed to prevent disease or promote health), that have a reasonable chance of preventing diseases or improving health, are not intended to undermine the ADA or other laws, and are not suspect in methodology. 

  • For example, it generally would be okay to (i) use health questionnaires and biometric screening to provide employees feedback on their overall health risk; and (ii) collect aggregate data in order to design wellness programs aimed at conditions prevalent among participants. 
  • However, it generally would not be okay to collect this information and then fail to provide feedback or to use it in program design.

Voluntary, for purposes of the EEOC’s proposed rule, means the employer cannot require participation, deny or limit health coverage for nonparticipation (except insofar as a limit may result from foregoing a permitted financial incentive), and may not take any other adverse action against employees who decline to participate in medical inquiries.  Additional requirements apply to a wellness program that is part of a group health plan.

Under the EEOC’s proposed rule, employers may offer incentives or penalties of up to 30% of the cost of employee-only coverage under the relevant group health plan.

The EEOC did not comment on the extent to which the Genetic Information Nondiscrimination Act (GINA)  might impact an employer’s ability to condition incentives or lack of penalties on family member participation in wellness programs, instead noting that it will address the issue in future guidance.