On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) published their proposed rules pertaining to the application of the American’s with Disabilities Act (ADA) to wellness programs that employers offer their employees. Wellness programs are typically designed to improve the health of employees and, ideally, to reduce health care expenses. The type of wellness program can vary, including but not limited to: weight loss programs, gym memberships, assistance in quitting smoking, and participation in health risk assessments.
A topic of recent hot debate, the controversy surrounding wellness programs has centered around the request of medical information, examinations, and medical history, so long as the employee’s participation in the program is voluntary. The EEOC has additionally advised that punishing or penalizing employees for declining to participate in wellness programs could potentially be unlawful.
In 2011, the EEOC stated that employers who offered financial incentives for their employees to participate in wellness programs could be in violation of the Genetic Information Nondiscrimination Act (GINA). All of these factors and controversies resulted in a number of lawsuits in which the EEOC challenged employer-sponsored wellness programs throughout the country.
The proposed rule provides guidance for employers in addition to a measure of certainty for programs that are already in place, or for employers who are considering implementing some type of wellness program into their organization. The rule permits employers to offer incentives to their employees who chose to voluntary participate in the wellness program or who meet certain wellness outcomes or goals. Employees must be provided with a notice that describes the health information that will be gathered for the wellness program and must be informed of who will have access to this health/medical information and how it will be used. Additionally, employers are not permitted to obtain health and wellness information about certain employees. A detailed description of the proposed rule can be found here.
The proposed rules are open for public comment, this period ends on June 19, 2015. With this new proposed rule, take this as an opportunity to review any wellness programs that your organization has in place. Make certain that there are no factors that may prove to be a potential violation of the ADA or GINA.