Employer Wellness Programs and the EEOC

September 22, 2016

The Equal Employment Opportunity Commission (EEOC) continues to scrutinize employer wellness programs and recently filed several lawsuits against employers claiming that certain wellness programs violate Title I of the Americans with Disabilities Act (ADA).

On May 17, 2016, the EEOC issued a final rule to amend the Regulations and the accompanying Interpretive Guidance (also known as the Appendix) implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. The EEOC’s final rule provides 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.

Some highlights of the EEOC’s final rule include the following:

  • Wellness programs are considered “employee health programs,” and thus permissible under the ADA, when they are reasonably designed to promote health or prevent disease. The employer cannot make the program overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.
  • Employee health inquiries and medical examinations are permitted under the ADA so long as the inquiry and/or exam is voluntary and part of an employee health program. This also includes the use of health risk assessments.
  • Employers must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it and the restrictions on disclosure.
  • Employers are prohibited from requiring employees to participate in employee health programs and are also prohibited from denying health coverage or otherwise disciplining employees who refuse to participate in such programs.
  • Employers may not use employee health programs to discriminate based on disability.
  • Employers must provide individuals with disabilities with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.

For more information, employers can review the final rule.

Contributed by Carly Osadetz, Associate, Clark Hill, Labor & Employment Practice Group.

View the on-demand webinar “Disability in the Workplace” with Dave Cessante and Carly Osadetz of Clark Hill.