EEOC Rule Making Employee Wellness Programs

The EEOC  released an advanced copy (attached) of its promised rulemaking on the intersection of the ADA, wellness programs and group health plans yesterday it  will be officially published on Monday starting a 60 day public comment period ending June 19.

The proposed rule provides guidance on how wellness programs offered as part of a group health plan can comply with the ADA and with HIPAA, as amended by the Affordable Care Act.  The ADA limits employer medical inquires but does allow them if they are voluntary and part of an employee health program.  Such programs must show that they are reasonably likely to promote health or prevent disease. Employees can’t  be required to participate in a wellness program, and cannot be denied health coverage or disciplined if they choose not to participate The rule supports  offering participation incentives of up to 30 percent of the total cost of employee-only coverage to employees that participate in wellness programs even when the  program includes medical exams and inquires (such as questions on a health risk assessment).  

The rule highlights important protections offered by the ADA.  Medical information collected as a part of a wellness program may be disclosed to employers only in aggregate form that does not reveal the employee's identity, and must be kept confidential.  The rule reinforces the employer’s obligation to provide reasonable accommodations to allow employees with disabilities an equal opportunity to participate in wellness programs and to earn any offered incentives.