On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule to help alleviate the perplexity over using financial incentives in worksite wellness programs.

The proposal addressed how the Americans with Disabilities Act (ADA) applies to worksite wellness programs – amending regulations that implement equal employment provisions to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through employer group health benefits. It aims to simplify what does and does not constitute a lawful wellness program in light of the ADA’s protections. EEOC chair Jenny Yang states, “The EEOC worked closely with the Departments of Labor, Health and Human Services, and Treasury in developing this NPRM to harmonize the ADA’s requirement that medical inquiries and exams that are part of an employee health program must be voluntary, and (the Health Insurance Portability and Accountability Act’s) goal of allowing incentives to encourage participation in wellness programs.”

Employers have been increasingly turning to wellness programs as a way to not only control health care costs but to improve the health of their workers. Many companies offer “participation only” wellness programs, in which employees participate in periodic wellness seminars or complete health risk assessment questionnaires to obtain a reward from the employer. Employers also offer “outcome-based” wellness programs, which condition the reward on the employee meeting a certain health-related benchmark, such as an appropriate body mass index (BMI) or blood cholesterol level, or remaining tobacco-free. Biometric screenings are a common part of these wellness and health promotion programs.

The ADA limits the circumstances in which employers may inquire employees about their health or require them to undergo medical examinations. It grants such inquiries and exams if they are voluntary and comprised of an employee wellness program. However, an employer cannot require an employee to engage in such a program and may not take any other adverse action against employees who refuse to participate in the wellness program or are unsuccessful in achieving a certain health outcome.

In addition, the ADA requires that wellness programs provide a sound alternative or waiver for achieving the incentive if an individual cannot participate or achieve goals due to a medical condition or disability. The EEOC’s proposal rules that wellness programs are permitted under the ADA, but they may not be used to discriminate based on a medical condition or disability.

The EEOC is launching a 60-day public comment period regarding these proposed regulations on April 20, 2015.

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