My personal interest in employer wellness programs increased a few months ago when my wife and I were offered significant health insurance premium savings through her employer by participating in such a program. We completed health risk assessments, answered questions about tobacco use, and had various measurements taken. We now have our own web pages that we can review to see our problem areas (mine looks pretty good except for this “body mass index” thing). I became curious about where these types of wellness programs now stand legally. Shortly thereafter, on April 20, 2015, the EEOC published notice of its new rule concerning wellness programs and the ADA. So now we know. I will give the highlights of the new rule below after a little history.
Recall that the ADA, passed in 1990, prohibits post-employment medical examinations unless based upon “business necessity.” Because of this ADA restriction and because most wellness programs involve examinations and questions about various health issues, the EEOC does not like wellness programs very much. In fact, the EEOC filed three fairly high-profile lawsuits against companies (we blogged about this last year) with wellness programs even before it published the new proposed regulations. So, the question for employers primarily has been how to offer one of these programs (and help curtail escalating health care costs and improve employee health) without running afoul of the ADA.
I think the new proposed EEOC regulations help significantly. This is both because the regulations provide guidance (rather than just waiting for what comes out of various lawsuits involving issues unique to those cases) and because the regulations seem to balance the ADA’s restrictions with common wellness programs components fairly evenly.
Here are the highlights:
- Wellness programs must be designed and implemented to promote good health practices and prevent disease. In other words, they cannot just be about finding out about health problems but doing nothing about them.
- The programs must be voluntary. No denials of coverage or any employee discipline are allowed.
- While financial incentives (like my wife’s premium discount) are allowed, they cannot exceed 30 percent of the cost of coverage.
- On the incentives issue, employees with disabilities must be offered reasonable accommodations to enable those employees to earn the incentives if they are not otherwise able.
- Medical information, of course, must be kept confidential in independent, secure files.
- Finally, a specific notice or disclosure must be provided informing employees of the types of medical information that will be obtained and what it will be used for.
The comment period on the proposed rule is open until June 19.
EEOC’s Notice of the Proposed Rulemaking on the ADA and Wellness Program Programs