On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) officially published a Notice of Proposed Rulemaking (NPRM) providing guidance to employers as to how they can craft and implement employee wellness programs without violating the Americans with Disabilities Act (ADA), which generally prohibits employers from making disability-related inquiries to employees or requiring that employees undergo medical examinations.  The ADA provides an exception to this prohibition, however, for medical inquiries and examinations that are part of an employee health program and in which the employee voluntarily agrees to participate.

In recent years, employee wellness programs have become an increasingly popular tool for employees to improve the overall health of their workforce and control their health care costs.  Congress has even acknowledged the benefits of employee wellness programs by including provisions in the Affordable Care Act (ACA) that promote their use by employers.  However, employees who participate in wellness programs may be asked to complete health risk assessments and/or undergo biometric screening to determine an employee’s health risk factors, such as blood pressure, glucose levels, body weight and cholesterol.  If not crafted properly, these assessments and screenings could run afoul of the ADA’s prohibitions against disability-related inquiries and medical examinations.  The EEOC has targeted many of these employer sponsored wellness programs, and last year it filed several lawsuits against employers claiming that their employee wellness programs exceeded the limitations imposed by the ADA.

Employee wellness programs may include nutrition classes, onsite exercise facilities and smoking cessation and weight loss programs.  Some employers may choose to offer incentives to employees who participate in the wellness program, while other employers choose to offer incentives to employees who achieve certain health outcomes.  These incentives may include prizes, money or a reduction in health care premiums.

Through the NPRM, the EEOC provides the following guidance to assist employers in determining what types of wellness programs comply with the ADA’s requirements:

Wellness programs must be truly voluntary.

In order for the wellness program to be considered truly voluntary, employers may not:

• Require employee participation in the program;
• Deny health insurance or provide reduced health benefits to employees who choose not to participate in the program;
• Discipline employees who choose not to participate in the program;
• Interfere with an employee’s rights under the ADA if he or she chooses not to participate in the program; or,
• Employ coercive, intimidating or threatening tactics to obtain employee participation.

Wellness programs must be reasonably designed to promote health or prevent disease.

According to the NPRM, the EEOC considers programs that collect information on a health risk assessment in order to provide the employee with feedback about her health risks, or uses aggregate data from health risk assessments to create wellness programs aimed at specific medical conditions to be reasonable and in compliance with the ADA.  However, wellness programs that collect health information without providing employees with feedback or that do not use the information to design a particular wellness program are not reasonable, and are in violation of the ADA.

Employee incentives must be limited.

While the NPRM does allow employers to offer employees certain incentives for participating in wellness program and/or for achieving particular health goals, incentives for wellness programs that are part of a group health plan must not exceed 30% of the total cost of employee-only health care coverage.

Medical information collected as part of the wellness program must be kept confidential.

Under the NPRM, employers may only receive health information regarding an employee in an aggregate form that does not reveal, and is not reasonably likely to reveal, the identity of particular employee participants.  Wellness programs that are part of a group health plan generally meet their confidentiality requirement by complying with the requirements of the Health Insurance Portability and Accountability Act (HIPAA).  Employers who are not HIPAA covered entities may generally meet this requirement by signing a certification, as provided for by HIPAA regulations, that they will not use or disclose individually identifiable medical information for any employment related purpose, and by abiding by this certification.

If the wellness program is part of a group health plan, then employers must provide clear notice to the employees regarding the program.

The notice provided by employers whose wellness programs are part of a group health plan must clearly explain: what health information will be obtained; how the health information will be used; who will receive the health information; what restrictions are imposed on its disclosure; and the methods the covered entity uses to prevent improper disclosure of the health information.

Employers must provide reasonable accommodations to disabled employees to enable them to participate in wellness programs and earn offered incentives.

For example, according to the NPRM, an employer who requires employees to undergo a blood test as part of a biometric screen may need to provide alternative to an employee’s who has a medical condition that would make drawing blood dangerous.  An employer may also need to provide wellness program related materials in an alternate format, such as Braille, for employees with visual impairments.

How Can Employers Benefit from this Notice?

Members of the public have until Friday, June 19, 2015 to submit comments to the EEOC regarding the NPRM.  HRLegalist recommends that employers review their wellness programs and make sure they are consistent with the provisions of the NPRM.  If your program includes elements that may run afoul of the ADA, consult with counsel and then make whatever changes are necessary.  The Centers for Disease Control remind us of the benefits of having a wellness program at the workplace. A strong wellness program has many benefits, including enhanced recruitment and retention of healthy employees, reduced healthcare costs, lower rates of illness and injuries, reduced employee absenteeism, improved employee relations and morale and increased productivity.   The NPRM is an opportunity to revise and update your wellness program with the goal not only of compliance with federal regulations, but also, and more importantly, of a healthier and happier workplace.