The Equal Employment Opportunity Commission (EEOC) penned the next chapter of the ongoing saga between wellness programs and the Americans with Disabilities Act (ADA) when it issued proposed rules. The ruling focused on how employers use incentives, which health information employers can gather, and how to provide reasonable wellness alternatives. The proposed rule states that an employer may offer limited incentives up to 30% of the total cost of employee-only coverage and that participation in wellness programs is voluntary.
EEOC defines voluntary in the proposed rules to mean an employer cannot:
- require employees to participate
- deny coverage under any of its group health plans or particular benefits packages
- take any adverse employment action or retaliate against employees
Penalties and alternatives for employees
Employees who choose not to participate, for any reason, in company wellness programs, will not be penalized or retaliated against. As for those who are unable to participate in the event of a disability, the employer must provide alternative solutions. For example, an employer that offers a financial incentive to attend a nutrition class would have to provide an interpreter or written materials for those who do not understand the information communicated in the class. This would still provide them the opportunity to earn the incentive.
What else could be impacted?
This limit could impact wellness programs offering higher incentives for things like smoking cessation (currently allowed to be up to 50% under wellness rules) if the smoking cessation requires a biometric screen or nicotine test.
How can I make a difference?
The EEOC will accept public comments through June 19, and final rules will not issue until later this year, at the earliest. Employers who offer wellness programs as part of their overall health plan should be aware that they might have to modify existing programs and practices to avoid violating the Americans with Disabilities Act (ADA).
If you have questions, please ask your benefits advisor or legal counsel. We’ll keep you updated with any updates. Want to learn more and get into the real nitty gritty?