The EEOC will evaluate the comments it receives make revisions and then vote on the final rule Photo by Thinkstock

The EEOC will evaluate the comments it receives, make revisions and then vote on the final rule. Photo by Thinkstock.

EEOC Rule Would Give Guidance on Employer Wellness Programs

The EEOC guidance would provide more clarity as to how an employer’s group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA).

The U.S. Equal Employment Opportunity Commission (EEOC) is proposing a new rule to give employers and employees more guidance on employer wellness programs that are part of group health plans.

The EEOC issued a Notice of Proposed Rulemaking (NPRM) on April 20 that specifically addresses how Title I of the Americans with Disabilities Act (ADA) applies to the wellness programs. The NPRM is open for a public comment period until June 19.

The NPRM’s guidance would provide more clarity as to how an employer’s group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA).

The NPRM is notable even though it does not address the relationship between wellness programs and fitness clubs.

"The overarching good news is that wellness has finally been woven into the framework of public policy and it looks like for good," Ken Germano, Ph.D., health services and public policy, told Club Industry in an e-mail. "As rulings evolve and interventions are continually evaluated for outcomes and effectiveness, things will continue to modify."

The EEOC will evaluate the comments it receives, make revisions and then vote on the final rule. Once it has been approved, the final rule will be sent to the Office of Management and Budget and will be coordinated with other federal agencies before it is published in the Federal Register.

The ADA limits the circumstances in which employers may ask employees about their health or require medical examinations, but those inquiries or exams are allowed if the wellness program is voluntary and part of an employee health program.

If an employee health program seeks information on an employee’s health or medical examinations, it must be reasonably likely to promote health or prevent disease under the NPRM. Employees may not be required to participate, may not be denied health coverage and may not be disciplined if they refuse to participate.

Wellness programs may not be used to discriminate based on disability, and the rule explains that under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs.

When it comes to information collected as part of a wellness program, employers may only receive disclosed information in aggregate form that does not identify individual employees. The information must remain confidential in accordance with the ADA.

The NPRM requires employers to provide employees with a notice describing what medical information is collected, with whom it will be shared, how it will be used and how it will remain confidential.

An employee’s ADA rights must be maintained, meaning employers may not interfere, threaten, intimidate or coerce anyone refusing to participate in a wellness program or for failing to achieve health outcomes.

Employees must be provided with reasonable accommodations that allow participation in wellness programs and to earn any employer-offered incentives in connection with the program.

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