In April, the U.S. Equal Employment Opportunity Commission issued proposed regulations focusing on how the American with Disabilities Act applies to corporate wellness programs. The proposed regulations give some guidance on how to legally use financial incentives to encourage workers to participate in such programs.
Although Title I of the ADA generally prohibits employers from obtaining medical information from employees, it allows employers to give medical examinations to employees and ask about their health if they are part of a voluntary “employee health program.” Before the proposed regulations, the EEOC had not yet determined whether employers could offer financial incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary. The new proposed regulations answer these questions — according to the EEOC, employers may offer incentives up to 30% of the cost of the employee-only coverage to employees who participate in a wellness program and/or achieve certain health outcomes.
The proposed regulations (http://www.regulations.gov), in most pertinent part:
- Define an “employee health program;”
- Set forth the requirements that must be met for a program to be considered “voluntary;”
- Detail the 30% of cost incentive limit; and
- Set forth additional confidentiality requirements of information gathered during participation in wellness programs.
Although these regulations are only proposed and may or may not go into effect as written in the near future, we suggest that you review your wellness programs and corresponding financial incentives in light of the regulations. Please note that under existing laws – even before the introduction of the proposed regulations – you cannot:
- Require employees to participate in a wellness program;
- Deny health insurance to employees who do not participate in the program;
- Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in the program; or
- Deny employees with disabilities reasonable accommodations that allow them to participate in a wellness program and receive any related incentives.