The Equal Employment Opportunity Commission (EEOC) has announced that it will publish a Notice of Proposed Rulemaking (NPRM) today, April 20, 2015, describing how the Americans with Disabilities Act (ADA) applies to wellness programs. Many employers offer incentivized workplace wellness programs designed to promote health and disease prevention, some of which incorporate biometric screenings and health risk assessments. The proposed rule will provide guidance on the use of financial incentives to encourage participation in wellness programs-without violating federal law.

The ADA requires that all medical inquiries and exams that are part of an employee health program be voluntary. The proposed rule will work to balance the ADA requirements with the HIPAA goal that permits incentives to encourage wellness program participation. The proposed rule explains that the ADA allows companies to offer incentives "of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs," according to the EEOC.

The proposed rule states the following about wellness programs:

  • The programs must be reasonably designed to promote health or prevent disease.
  • The programs must be voluntary.
  • Employees must not suffer any adverse employment action for declining to participate, including denial of health coverage or discipline by the employer.
  • Limited incentives (maximum of 30 percent of the total cost of employee-only coverage) may be offered for participation or achievement of certain health outcomes.
  • The medical information obtained during any exam must be kept confidential.
  • Reasonable accommodations must be made to allow disabled employees' participation so they can earn whatever incentives are offered.

The proposed rule makes it clear that the ADA permits wellness programs, but the programs cannot be used to discriminate on the basis of a disability. The NPRM also includes interpretive guidance that would require employers to provide employees a notice describing how and what medical information will be collected, shared and used, as well as how such medical information will be kept confidential.

Members of the public have until Friday, June 19, 2015 to submit comments to the proposed rule.

If you have questions regarding your company's wellness programs, please contact an attorney.