US: New EEOC guidance for wellness programs

Large employers using wellness programs to reduce the cost of medical benefits must take care not to inadvertently violate various federal laws, including The Americans with Disabilities Act (ADA), The Health Insurance Portability and Accountability Act (HIPPA) and The Genetic Nondiscrimination Act. To assist employers in this regard, on 16 May 2016, the Equal Employment Opportunity Commission (EEOC) issued a final rule regarding the interplay between wellness programs and the ADA.

Many employers encourage participation in workplace wellness programs, which serve to improve employee health and often reduce the cost of medical benefits. In connection with these programs, employers sometimes request health information about employees and their families through the use of questionnaires, health risk assessments or biometric screenings (medical exams), which are only permissible under the ADA if they are part of a voluntary health program. However, prior to 16 May, the regulations did not define the term "voluntary" or explain what constitutes a "health program". The concern was that, if over-incentivised, a voluntary program could become involuntary and thus would impermissibly require the disclosure of otherwise protected information.

The EEOC has addressed this concern by issuing its final rule amending the regulations and interpretive guidance, providing guidance on the extent to which employers may use incentives (whether framed as rewards or penalties) to encourage participation in wellness programs that require employees to answer disability-related questions or to undergo medical examinations. The EEOC has also provided guidance regarding the differences between the ADA's requirements for voluntary health programs and other federal laws, such as HIPAA, as amended by the Patient Protection and Affordable Care Act.

Actions for employers

Employers should review and revise as necessary wellness programs and policies to ensure compliance with the new EEOC regulations, and circulate EEOC guidance to those involved in managing those programs.

For more details see the EEOC's website here.