by Tammy Binford

The Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking addressing how employer wellness programs can be in compliance with the Americans with Disabilities Act (ADA).

The EEOC announced the proposed rule on April 16, and it was published in the Federal Register on April 20. Members of the public have until June 19 to submit comments. In addition to the notice, the EEOC has published a fact sheet for small businesses and a question-and-answer document.

The EEOC’s announcement of the proposed rule says that the ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations, but such inquiries and exams may be allowed if they are voluntary and part of an employee health program.

The EEOC says its 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.”

The EEOC announcement says the proposed rule would require 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. In addition, 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 says the proposed rule clarifies that wellness programs are allowed under the ADA, but they may not be used to discriminate based on disability.

The EEOC’s actions against some employers have sparked criticism from employer wellness program advocates. On November 14, 2014, the Business Roundtable publicized a letter to Labor Secretary Thomas E. Perez, Treasury Secretary Jacob J. Lew, and Health and Human Services Secretary Sylvia Mathews Burwell expressing “strong disappointment” with the EEOC. The letter said the agency has targeted employers by filing lawsuits against them even though their wellness programs comply with the Affordable Care Act.

The EEOC’s fact sheet explains that to comply with the proposed new rule, wellness programs:

• Must be reasonably designed to promote health or prevent disease.
• Must be voluntary.
• Must offer limited incentives for employees to participate in the programs or to achieve certain health outcomes. The amount of the incentive may not exceed 30 percent of the total cost of employee-only coverage.
• Must keep confidential medical information obtained as part of the program.
• Must provide reasonable accommodations that enable employees with disabilities to participate and to earn whatever incentives the employer offers.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.