The Equal Employment Opportunity Commission (EEOC) yesterday 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 health plans.
The NPRM is available in the Public Inspection portion of the Federal Register, and will be officially published on Monday, April 20, 2015. Members of the public have 60 days from that date (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 and a Question and Answer document for 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.