EEOC Issues Notice of Proposed Rulemaking on Employer Wellness Programs — Some Employers Don’t Feel So Good As a Result

On April 20, 2015, just in time for the summer fitness fads and weight loss challenges, the Equal Employment Opportunity Commission (EEOC or the Commission) issued a “notice of proposed rulemaking” (Notice) on how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of a group health plan.

The Notice proposes changes both to the text of the EEOC’s ADA regulations and to an interpretive guidance explaining the regulations that will be published along with the final rule. The following questions and answers describe what the Notice says and what will happen now that the proposed rule has been issued.

The proposed rule:

• clarifies that the ADA allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes;
• describes employer practices that are wellness programs and those that are not;
• defines what it means for an employee health program to be voluntary;
• explains how ADA rules requiring employers to keep medical information confidential apply to medical information obtained as part of voluntary employee health programs; and
• does not change any of the exceptions to confidentiality requirements provided in the EEOC’s existing ADA regulations but adds a new subsection saying that a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan.

The Notice, for now, is just a draft. Anyone who wants to comment on it before it becomes final has 60 days to do so, until June 19, 2015. Members of the public may comment on anything in the proposed rule and in the interpretive guidance accompanying the rule. The EEOC will then evaluate the comments and (ahem!) make revisions in response to those comments. The Commission will then vote on a final rule and publish it.

In the meantime, the Notice itself is a good indicator of what will actually be published, so even though employers do not have to comply with the proposed rule, they may certainly do so. Because many of the requirements in the proposed rule are existing requirements employers are reminded that they should not:

• require employees to participate in a wellness program;
• deny health insurance to employees who do not participate; and
• take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.

Good luck and good health to you!