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Commentary: EEOC opens the door to employer-sponsored wellness programs

Wellness programs are a new trend in the workplace thanks to a provision in the Affordable Care Act that encourages employers to implement these programs. However, not all employers have been quick to jump on board, due in part to a lack of regulatory guidance and some pushback from the Equal Employment Opportunity Commission, or EEOC.

In the past year, the EEOC filed lawsuits against three employers, alleging that their wellness programs violated the Americans with Disabilities Act. It was unclear from these lawsuits whether the EEOC would approve wellness programs.

Now, for the first time since the Affordable Care Act went into effect, the EEOC has proposed new rules to reconcile the Affordable Care Act’s provisions for wellness programs with the ADA and give employers guidance on how to implement wellness programs that do not violate the ADA.

The EEOC’s proposed rules come from a concern that employees may be coerced into providing disability and medical information for wellness programs through employers’ use of incentives to obtain participation. Some incentives are viewed as coercive because the incentive results in a significant penalty for nonparticipation. To avoid this, the EEOC has drafted rules that place limits on employers’ requests for employee medical information and on employers’ use of incentives to obtain employee participation.

First, a wellness program and all of its elements, including inquiries into disability and medical conditions, must be “reasonably designed to promote health or prevent disease.” In other words, the program must have a reasonable chance of improving employee health and preventing disease and must not be (a) overly burdensome, (b) a subterfuge for violating the ADA, or (c) highly suspect in the method chosen to promote health.

Second, a wellness program that includes disability-related inquiries or medical examinations must be voluntary. In order for a program to be voluntary, an employer cannot deny health coverage, limit the extent of coverage, or take any other adverse employment action against an employee who does not participate or does not reach certain health outcomes.

Third, if a wellness program asks employees to provide medical information, such information shall be provided to the employer in the aggregate, so that the employer does not have specific information for individuals. Additionally, the employer must provide notice to the employee that clearly explains what information is collected, who will receive it, how it will be used, and what methods will be used to prevent disclosure.

If it meets these criteria, a wellness program may use incentives for employee participation, but the incentive must be available to all similarly situated employees regardless of any health factor. Also, incentives must not exceed more than 30 percent of the total cost of employee-only coverage.

The proposed rules are not yet final, and the public now has an opportunity to comment on the rules. The EEOC has requested comments that specifically address, among other things, whether incentives should be restricted so that they do not have the effect of rendering health insurance unaffordable and whether additional protection is needed for low-income employees. Comments on the proposed rules must be received by the EEOC on or before June 19.

Many employers have already successfully implemented voluntary wellness programs with no financial incentive, merely, an opportunity for an employee to improve his or her health. These programs have (anecdotally) been succeeding. Furthermore, there is no reason why any qualified individual with a disability cannot participate in some form of wellness activity; meditation, for example, can be done by many qualified individuals with disabilities, as can other forms of stress reduction.

Please review the rules and comment, whether you are an employee or employer. As our nation’s health care perspective shifts from fee for service to prevention and wellness, the author anticipates that such plans will become incorporated into most employers’ cultures, and into employees’ lives.

Mindy Willman is an attorney in the Boise, Idaho, offices of the law firm Moffatt Thomas. Her practice focuses on commercial litigation, insurance defense, healthcare law and employment law. She can be reached at A version of this column originally appeared in Idaho Business Review, sister publication to The Daily Record.