A prior blog post on this site addressed the issue of making sure your company’s wellness program complied with EEOC and ADA restrictions on obtaining health and medical information regarding your employees. Since that post, the EEOC has now recently proposed a rule that is aimed at providing clarity on an employer’s ability to implement wellness programs for its employees.

In order to address the goals of not permitting an employer make the participation mandatory or penalize employees for not participating, the proposed rule provides that a voluntary wellness program offered by an employer as part of a group health plan may provide incentives totaling up to 30 percent of the cost of employee-only coverage. Furthermore, the employer cannot: (1) require participation, (2) deny coverage or benefits under a group health plan for failing to participate, or (3) take any adverse employment action against any employee who refuses to participate or fails to achieve certain health-related outcomes.

With regard to collection of employee health information, the proposed rule requires that if a wellness program seeks information about employee health or requires medical examinations, the program must be reasonably likely to promote health or prevent disease. Employers that sponsor wellness programs (as well as the program administrators acting as agents of employers) must comply with this requirement. When the program is part of a group health plan, employers must provide employees with a notice that describes what medical information will be collected, with whom it will be shared, how it will be used, and how it will be kept confidential.

Notably, a health risk assessment that asks about tobacco use does not constitute a disability-related inquiry and is, therefore, not subject to the ADA or the 30 percent limit on incentives. A biometric screening, however, that tests for the presence of nicotine or tobacco would be a medical examination under the ADA and subject to the EEOC’s proposed 30 percent cap.

The proposed rule was published in the Federal Register on April 20, 2015, and the EEOC is accepting comments until June 19, 2015. After accepting comments and making any modifications, it is anticipated that a final rule will be published in the Federal Register and then subsequently codified in the Code of Federal Regulations. The EEOC has also released a Fact Sheet for Small Businesses and a Question and Answer document for the general public.