On April 20, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking (NPRM) describing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of group healthplans. The NPRM is available in the Public Inspection portion of the Federal Register. Members of the public have 60 days from the date of publication (or until Friday, June 19) to submit comments.

The EEOC's proposed rule would provide much needed guidance to both employers and employees about how wellness programs offered as part of an employer's group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act. In addition, the EEOC is also publishing a Fact Sheet for Small Businesses (see below) and a Question and Answer documentfor the general public.

Many employers that provide health insurance also offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. These programs sometimes use health risk assessments and biometric screenings to determine an employee's health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels. Some of these programs offer financial and other incentives for employees who participate or achieve certain health outcomes.

Although the ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations, it allows such inquiries and exams if they are voluntary and part of an employee health program.  

The NPRM further requires that if an employee health program seeks information about employee health or medical examinations, the program must be reasonably likely to promote health or prevent disease. Employees may not be required to participate in a wellness program, and they may not be denied health coverage or disciplined if they refuse to participate.

The EEOC's proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. The rule explains that under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs. These programs can include medical examinations or questions about employees' health (such as questions on a health risk assessment).  

This limit is generally consistent with limits that HIPAA imposes on wellness programs. The rule also makes clear however, that the ADA provides important safeguards to employees to protect against discrimination based on disability. Accordingly, 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 in accordance with ADA requirements.

"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 HIPAA's goal of allowing incentives to encourage participation in wellness programs," said EEOC Chair Jenny R. Yang.

Employers also may not subject employees to interference with their ADA rights, threats, intimidation, or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes. Finally, individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.

In addition to setting a limit on incentives, the NPRM, which includes interpretive guidance that will be published along with the final rule, requires that employers provide employees a notice that describes what medical information will be collected, with whom it will be shared, how it will be used, and how it will be kept confidential. The interpretive guidance also includes an extensive discussion of both legal requirements and best practices that ensure confidentiality of employee medical information.

The Commission looks forward to receiving comments on the NPRM that will shape the final regulation. In addition, the Commission has asked a number of specific questions in the preamble to the NPRM on which it seeks comment before finalizing the rule. Methods for commenting are specified in the notice in the Federal Register.

The EEOC enforces the federal laws prohibiting employment discrimination. More information about the EEOC is available at www.eeoc.gov.

Fact sheet explaining NPRM on Employee Wellness Programs and ADA Compliance

Published by U.S. Equal Employment Opportunity Commission (EEOC), www.eeoc.gov

Wellness programs must be reasonably designed to promote health or prevent disease.

They must have a reasonable chance of improving health or preventing disease in participating employees, must not be unduly burdensome to employees, and must not violate the ADA.

A program that collects information on a health risk assessment to provide feedback to employees about their health risks, or that uses aggregate information from health risk assessments to design programs aimed at particular medical conditions is reasonably designed. A program that collects information without providing feedback to employees or without using the information to design specific health programs is not.

Wellness programs must be voluntary.

Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.

Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.

Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

Employers may offer limited incentives for employees to participate in wellness programs or to achieve certain health outcomes.

The amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage.

For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

Medical information obtained as part of a wellness program must be kept confidential.

Generally, employers may only receive medical information in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific employees.

Wellness programs that are part of a group health plan may generally comply with their obligation to keep medical information confidential by complying with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.

Employers that are not HIPAA covered entities may generally comply with the ADA by signing a certification, as provided for by HIPAA regulations, that they will not use or disclose individually identifiable medical information for employment purposes and abiding by that certification.

Practices such as training individuals in the handling of confidential medical information, encryption of information in electronic form, and prompt reporting of breaches in confidentiality can help assure employees that their medical information is being handled properly.

Employers must provide reasonable accommodations that enable employees with disabilities to participate and to earn whatever incentives the employer offers.

For example, an employer that offers an incentive for employees to attend a nutrition class must, absent undue hardship, provide a sign language interpreter for a deaf employee who needs one to participate in the class.

An employer also may need to provide materials related to a wellness program in alternate format, such as large print or Braille, for someone with vision impairment.

An employee may need to provide an alternative to a blood test if an employee's disability would make drawing blood dangerous

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