EEOC Publishes Final Rules for Wellness Programs

Recently the Equal Employment Opportunity Commission (EEOC) published final rules applying the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) to wellness programs.

As expected, the EEOC has taken a stricter line on such programs than the Department of Health and Human Services, consistent with its mission to prohibit discrimination in the workplace. In general, EEOC generally requires that participation in wellness programs that include disability-related inquiries or medical examinations to be truly “voluntary” in nature.

In order for such a program to be “voluntary,” according to the EEOC, an employer:

  1. May not require any employee to participate;
  1. May not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan; and
  1. May not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes.

An employer must also provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure. Finally, an employer must comply with the incentive limits explained below. EEOC has published a sample of such a notice here.

THE EEOC also caps incentive rewards at 30 percent of self-only coverage, which is the same as that under HIPAA regulations. With regard to tobacco use incentives, however, the EEOC only approves of HIPAA’s 50 percent cap if the program merely asks employees whether or not they use tobacco. If employees are biometrically (or otherwise) tested for the presence of nicotine or tobacco, the incentive is capped at 30 percent.

For more information about these new rules, click on the following links:

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