Be Aware of Recent EEOC Compliance Regulations for Employer Wellness Plans

As employer wellness programs have grown in numbers and sophistication, the Equal Employment Opportunity Commission (EEOC) has developed guidance on how these programs should comply with the Americans with Disabilities Act (ADA) rule. Here are highlights of the requirements that your wellness program needs to follow:

• Many programs have a health risk assessment component to them. If your wellness program asks employees about their medical condition, or offers medical exams (think biometric screening), then it must be voluntary and sensibly designed to promote health in the workplace. Penalties if certain health goals are not reached are not allowed.  
• Employers cannot require employees to participate. You may not deny or limit health coverage for non-participation, or retaliate against an employee who does not want to take part.
• Limited financial incentives to increase participation are permitted for voluntary wellness programs under the regulations. Incentives must be calculated based on percentage of the cost of self-only health insurance coverage. Tangible incentives, such as t-shirts, must be included in the calculation. For more information on how to calculate the amount of an incentive, visit the EEOC’s Q&A on the topic. If incentives are tied to your health insurance program, contact your attorney for direction.
• Be sure to clearly notify employees what medical information will be collected and how it will be used as part of the wellness program, as well as its confidentiality. In June 2016, the EEOC posted a sample notice on its website in order to help employers comply. Notice must be provided on the first day of the plan year that begins on or after Jan. 1, 2017. The effective date of the rule is July 18, 2016.
• Not all wellness programs are subject to the ADA final rule. It is not applicable to wellness programs that do not require medical exams or do not ask about an employee’s disabilities.