The EEOC has approved a proposed rulemaking addressing what level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information, without violating the Americans with Disabilities Act (ADA).
The Notice of Proposed Rulemaking (NPRM) was drafted in response to a decision by the U.S. District Court for the District of Columbia that vacated a portion of EEOC’s previous ADA regulation on the matter. Although HIPAA, as amended by the Affordable Care Act, allows employers to offer incentives up to 30% of the total cost of health insurance to encourage participation in certain types of wellness programs, the ADA requires that employee participation in a wellness program that includes medical questions and exams be voluntary. In the absence of any ADA statutory definition of “voluntary,” the NPRM proposes that for most wellness programs employers may offer no more than a de minimis incentive to encourage participation, and must meet other requirements, to comply with the ADA. Certain wellness programs, however, will be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations.
The vote to approve the NPRM means it will now to go the Office of Management and Budget for review. If approved, the NPRM will be published and the public will have an opportunity to submit comments on the proposed rule.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its public web site at www.eeoc.gov.