On June 19, 2015, public comments were submitted for the EEOC’s much anticipated proposed rule to amend the Title I of the ADA to clarify how the statute applies to certain employee health wellness programs. The EEOC’s stated goal for the rule is to harmonize wellness programs’ use of incentives to encourage participation with the ADA’s requirement that disability-related inquiries and medical exams as part of a wellness program must be voluntary and not penalizing in nature.

The Issue: Incentivizing Wellness Programs

The ADA generally prohibits employers from making disability-related inquiries or requiring medical examinations, but provides an exception for voluntary medical examinations, including voluntary medical histories, which are part of a wellness program.  The wellness program is voluntary so long as an employer neither requires participation nor penalizes employees who do not participate.  Prior to the EEOC’s proposed rule, neither the statute nor EEOC regulations addressed the extent to which incentives for participation might affect the voluntary nature of a wellness program, but recent lawsuits filed by the Commission caused concern among employers regarding whether incentivizing wellness programs to any extent violated the ADA.

The Solution: The Proposed Rule

The EEOC drafted the proposed rule to be in line with current ACA and HIPAA regulations regarding wellness programs generally and the use of incentives specifically.  The main points of the rule are as follows:

• Incentives – Employers are allowed to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program without violating the “voluntary” requirement of the ADA. E.g., if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum value of incentives for an employee under that plan is $1,500.

• Confidentiality – 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 HIPAA. Specifically, medical information collected as part of a wellness program may be disclosed to employers only in aggregate form that does not reveal the employee’s identity.

• Reasonable Accommodations – Employer must provide reasonable accommodations that enable employees with disabilities to participate and to earn whatever incentives the employer offers.  E.g., an employer would need to provide wellness program materials in large print or Braille if necessary to accommodate a participant with vision impairment.

While there is not yet an anticipated date for a final rule, the Commission encourages employers to start complying with the proposed rule now.