Among other things, the Americans With Disabilities Act (ADA) generally restricts an employer’s ability to make disability-related inquiries of employees and to require employees to undergo medical examinations. There are various exceptions to these restrictions, including an exception for inquires and examinations that are part of a voluntary employee health program. Employers-sponsored wellness programs are an employee health program under which employers may, in certain circumstances, request employees to provide medical information (e.g., complete a health risk assessment) or undergo a medical examination (e.g., biometric screening) on a voluntary basis.
The EEOC issued regulations in May, 2016 that identify when a wellness program that requests or obtains medical information will be considered voluntary. The EEOC’s regulations become effective as of the first day of the first plan year beginning on or after January 1, 2017. Employers with wellness programs should take steps now to determine whether the EEOC’s regulations apply to their wellness programs and, if so, ensure they are in compliance. It is the employer’s responsibility to ensure its wellness program complies with the regulations.
Note: These EEOC regulations apply only to wellness programs that involve a request for medical information from employees, whether through questionnaires, screenings, etc. Furthermore, the EEOC has confirmed that asking whether an employee uses tobacco is not the type of inquiry that triggers application of these regulations.
To be compliant with the ADA as interpreted by the EEOC, a wellness program that involves medical inquiries or examinations must satisfy the following general requirements:
- The wellness program must be reasonably designed to promote health or prevent disease (e.g., information obtained must be used to alert individuals about health risks and/or to design programs to treat conditions common among the employer’s workforce);
- Employees cannot be required to participate;
- The employer cannot retaliate or taken any adverse employment action against employees who do not participate;
- Coverage under a group health plan or a benefit option within a group health plan cannot be denied or limited for employees who do not participate (other than through permitted incentives);
- Any incentive or reward provided for participation cannot exceed 30% of the cost of coverage under the employer’s group health plan (or, if the employer does not offer one, a particular group health plan available from the public exchange) per person who participates in the program;
- The employer and the program must ensure any health information obtained under the program remains confidential; and
- Employees must be notified of certain rights prior to the collection of information (the EEOC has provided a sample notice available here).
Caution: The EEOC regulations regarding wellness programs are just one set of legal requirements that might apply to an employer-sponsored wellness program. Other potentially applicable requirements include the ADA reasonable accommodation rules, HIPAA’s health status nondiscrimination requirements for wellness programs, HIPAA’s privacy and security requirements, and GINA’s restrictions on the collection and use of genetic information. Care must be taken to determine and comply with all of the legal requirements applicable to wellness programs. Compliance with the EEOC regulations does not ensure compliance with these other laws (and vice versa).
Please contact us if you have any questions about the regulations or if you need assistance determining whether the EEOC wellness program regulations apply to your wellness program and/or bringing your program into compliance with the regulations.