The U.S. Equal Employment Opportunity Commission (EEOC) announced yesterday that it will issue proposed regulations on Monday, April 20, to clarify how the Americans with Disabilities Act (ADA) applies to wellness programs that are part of group health plans. The regulations, if adopted, will address the conflict between the ADA’s prohibition on disability-related inquiries and medical examinations and the need to conduct such inquiries and examinations as part of “health-contingent” wellness programs that are encouraged under the Affordable Care Act amendments to the Health Insurance Portability and Accountability Act. In short, the new regulations will provide EEOC’s views on how employers can comply with federal disability law while financially incentivizing employees to participate in wellness programs.  
 
Many employers offer workplace wellness programs to encourage healthier lifestyles or prevent disease. These programs often seek to determine an employee's health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels, through the use of health risk assessments and biometric screenings. Some wellness programs offer financial or other incentives for employees who participate or achieve certain health outcomes.

The ADA, on the other hand, limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations. In the last year, the EEOC has sued several employers for allegedly violating the ADA by discriminating against employees who refused to participate in biometric testing for wellness programs or who failed to meet the programs’ goals.  

The EEOC's proposed regulations make clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. The proposed regulations explain that the ADA permits companies to offer incentives consisting of discounted insurance premiums (subject to the cap and restrictions noted below) for participation in wellness programs, and that these programs can include medical examinations or questions about employees' health. 

Notable items from yesterday's announcement include:

  • The proposed regulations will create a cap on employer incentives for participation in wellness programs of 30% of the total cost of employee-only coverage. Presumably, offering incentives at or below the cap will be deemed to be compliant with the ADA’s disability discrimination provisions. 
  • EEOC will continue to take the position that all medical exams and inquiries must be completely voluntary; i.e., employers will not be able to require participation in health-contingent wellness programs.
  • For an employee’s participation to be deemed “voluntary,” employers must provide a notice describing what medical information will be collected, with whom it will be shared, how it will be used, and how it will be kept confidential.
  • Employee health programs and any disability-related queries or medical examinations that are part of them also must be “reasonably designed to promote health or stave off disease.”  
  • Medical information collected as a part of a wellness program may be disclosed to employers only in aggregate form that does not reveal the employees' identities, and must be kept confidential in accordance with ADA requirements.
  • Employers also may not interfere with employees’ ADA rights or threaten, intimidate, or coerce employees who refuse to participate in a wellness program or who fail to achieve certain health outcomes. 
  • 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.

The EEOC’s Notice of Proposed Rulemaking (NPRM) will be officially published in the Federal Register on Monday, April 20th, which will then trigger a 60-day public comment period. The EEOC is also publishing a Fact Sheet for Small Businesses and aQuestion and Answer document for the general public.