EEOC Issues Final Rules on Employer Wellness Programs

by Foley Hoag LLP

On May 16, 2016, the Equal Employment Opportunity Commission (EEOC) issued two final rules describing how employer wellness programs must comply with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Many employers offer wellness programs to their employees designed to facilitate healthy lifestyles. These programs sometimes include medical questionnaires or health risk assessments, such as questions about weight, cholesterol and other health factors. The new rules are designed to provide guidance on confidentiality and privacy issues, as well as on the extent to which employers may use incentives to encourage participation in wellness programs that require certain health disclosures.

The ADA and GINA generally prohibit employers from obtaining medical information from employees and job applicants. These laws provide, however, that employers may utilize health questionnaires as part of wellness programs, so long as participation is voluntary. Last year, the EEOC proposed rules to address whether offering financial incentives in connection with wellness programs renders the programs involuntary. The final ADA rule says that employers may offer incentives of up to 30% of the total cost of self-only coverage under the group health plan (including both the employee’s and employer’s contribution), to promote an employee’s participation in a wellness program that includes disability-related inquiries or medical examinations, provided that participation is voluntary. This benchmark differs from the maximum allowable incentive available under the Health Insurance Portability and Accountability Act (HIPAA), which is 30% of the total cost of coverage under a plan in which the employee and any dependents are enrolled (compared to self-only costs under the ADA rule).

The final GINA rule provides that the maximum incentive for a spouse’s participation in a wellness program cannot exceed 30% of the cost of self-only coverage (including both the employee’s and employer’s contribution), the same incentive allowed for the employee. The rule provides the following example: if an employee is enrolled in a group health plan through the employer at a total cost of $14,000 for family coverage, that plan has a self-only option for a total cost of $6,000, and the employer provides the option of participating in a wellness program to the employee and spouse if they participate in the plan, the employer may not offer more than $1,800 to the employee and $1,800 to the spouse. Employers cannot offer incentives for information about employees’ children or for certain specified genetic information.

In addition, the rules add two new provisions relating to confidentiality. First, employers may only receive aggregated health information collected in connection with a wellness program that is not reasonably likely to disclose the identities of specific individuals. Second, employers may not condition incentives on employees agreeing to the sale or disclosure of their medical information.

These final rules will go into effect beginning in 2017 and apply to all employer-provided wellness programs, including those that are not conditioned on enrollment in a particular health plan.

In connection with these changes, employers should evaluate their existing incentives for participation in company-provided wellness programs. The new rules make clear that the 30% benchmark applies to both financial and in-kind incentives, such as prizes and insurance premiums. Further, the new rules explain that health questionnaires must “reasonably be designed to promote health or prevent disease.” This means not all inquiries are lawful, and it is worthwhile assessing whether the information sought is overly burdensome or intrusive.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP | Attorney Advertising

Written by:

Foley Hoag LLP

Foley Hoag LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.