The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it will publish a Notice of Proposed Rulemaking on April 20 that addresses how the Americans with Disabilities Act (ADA) applies to employee wellness programs. To read the EEOC’s proposed rules in full, click here.
As past Mueller QAAS blog posts have detailed, the EEOC has been at odds with some employers about how incentives can be used to persuade employees to participate in wellness programs. Last year, the EEOC sued three employers in Wisconsin and Minnesota over their workplace wellness programs, and argued that the programs violated the ADA because they were not voluntary. The rules propose that wellness programs will not violate the ADA if they follow certain guidelines to ensure that employee participation is truly voluntary.
Under the proposed rules, a wellness program will be considered voluntary so long as the employer (1) does not require employees to participate, (2) does not deny coverage or limit benefits for employees who do not participate, (3) does not retaliate or take adverse employment action against employees who do not participate, and (4) provide a notice that describes what medical information will be collected, who it will be shared with, and how it will be used and kept confidential. Further, the rules propose that incentives will not make a program involuntary if the maximum incentive does not exceed 30% of the total cost of employee only coverage.
Although these rules would bring welcome clarity to the issue of what a “voluntary” workplace wellness program looks like, the rules are not final. The EEOC specifically sought comment on two alternate visions of voluntary wellness program. First, the EEOC asked whether a voluntary program should be required to offer incentives to employees who refuse to provide medical information, but instead provide certification from a medical professional that any medical risks identified by the employee’s physician are under active treatment. Second, the EEOC asked whether it would be appropriate to require wellness incentives to keep an employee’s share of the cost of coverage below the ACA’s affordability threshold (9.56% of household income in 2015).
Member of the public have sixty days to comment on the proposed rules, between April 20, 2015 and June 19, 2015. If you would like to submit a comment electronically, visit www.regulations.gov.
To read more about the EEOC’s proposed rules from The Associated Press, click here.