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The EEOC Addresses Employer Wellness Plans

By Katherine Tracy

The EEOC has issued guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations without running afoul of Title I of the Americans With Disabilities Act. According to the Final Rule, “This rule applies to all wellness programs that include disability-related inquiries and/or medical examinations whether they are offered only to employees enrolled in an employer-sponsored group health plan, offered to all employees regardless of whether they are enrolled in such a plan, or offered as a benefit of employment by employers that do not sponsor a group health plan or group health insurance.” The Final Rule goes into effect in January, 2017.

Title I of the ADA prohibits employers from discriminating against applicants and employees on the basis of disability and generally restricts employers from obtaining medical information from applicants and employees. However, it does permit employers to inquire about employees’ health or conduct medical examinations as part of voluntary employee health programs including workplace wellness programs.  Title I also requires employers to make all wellness programs available to all employees, to provide reasonable accommodations to employees with disabilities and to keep all medical information confidential.

The EEOC has published a Q&A document on its website regarding the Final Rule on employer wellness programs.

The Final Rule sets limits for financial incentives on employer wellness programs. The limits are intended to keep the “voluntary” in “voluntary employer wellness plans.” Allowing employers to provide increasingly higher incentives to employees to participate in voluntary employer wellness plans may actually be coercive and cause employees to feel that they must participate in the program. The Final Rule provides guidance, in part, on how to avoid this.

The Final Rule sets out requirements to keep participation in employer wellness programs voluntary. For example (and perhaps obviously), an employer may not require any employee to participate in the program. It also may not deny an employee who does not participate in the wellness program access to health coverage or prohibit any employee from choosing a particular plan.

The Final Rule addresses several issues regarding employer wellness plans. If you have questions about the EEOC’s Final Rule, please feel free to contact us.

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