EEOC Addresses Wellness Programs

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a Notice of Proposed Rulemaking on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The proposed rules address what level of incentives employers can offer to encourage employee participation in wellness programs that require disclosure of medical information without violating the ADA or GINA.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Patient Protection and Affordable Care Act, allows employers to offer incentives up to 30 percent of the total cost of health insurance to encourage participation in certain types of wellness programs. But the ADA requires that employee participation in a wellness program that includes medical questions and exams be “voluntary,” while neither the ADA nor GINA defines “voluntary.” The EEOC states that its proposed rules provide “that, in order to comply with the ADA and GINA, employers may offer no more than a de minimis incentive to encourage participation in wellness programs, with the exception of certain wellness programs that would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations.”

The public now has at least 60 days to comment on the EEOC’s proposed rules. We will keep you posted on developments regarding wellness rules.

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