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An Apple a Day Keeps the Doctor Away (As Long as the Apple is Voluntary)

This week, the EEOC published a proposed rule on employer wellness programs, shedding some much-anticipated light on the intersection of these programs with the Americans with Disabilities Act (ADA). This proposed rule would amend both the ADA regulations and the interpretive guidance and will remain open for comment for 60 days before finalization.

The ADA prohibits employers from discriminating against employees because of their disabilities. It also generally prohibits employers from making disability-related inquiries of employees or requiring medical examinations. One exception to this prohibition is for “voluntary” medical inquiries and examinations taken in conjunction with an employee health programs. But what is voluntary? Answering that question is the main focus of the EEOC’s proposed rule. Here’s what it says in a nutshell:

Wellness Programs are Voluntary if:
  • They are reasonably designed to promote health or prevent disease, and not merely a subterfuge to collect medical or disability-related information that would otherwise be off limits.
  • Employees receive notice clearly explaining what medical information is obtained for the wellness program, who will receive the information, how it will be used, the restrictions on its disclosure, and the measures that will be taken to prevent the improper disclosure of the information.
  • Reasonable accommodations are provided to employees with disabilities (such as an alternative health standard) to enable them to earn wellness program incentives.

Wellness Programs are Involuntary if:
  • They are overly burdensome to employees.
  • They require employee participation.
  • Employers deny or limit health coverage for non-participating employees.
  • Employers retaliate, coerce, or take adverse employment action against employees who do not participate or refuse to provide medical information.
  • They require disability-related inquiries or medical examinations and offer participation incentives that exceed 30 percent of the employee’s share of his or her health coverage costs.

In addition, the proposed rule outlines confidentiality protections for medical information collected through wellness programs. Such information may only be received by an employer in aggregate form, in a manner that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as necessary to administer the health plan. Such information should generally not be disclosed to supervisors. The EEOC recommends that employers make a concerted effort to separate the handling of medical information and the making of employment decisions.

This proposed rule on employer wellness programs marks the first time the EEOC has provided guidance on this new area of law. However, the EEOC expressly acknowledges other laws, including HIPAA (governing the protection of health information), GINA (protecting genetic information), and the Affordable Care Act (encouraging wellness initiatives) that contain separate and intersecting obligations for employers crafting wellness programs.