On April 16, 2015, the U.S. Equal Employment Opportunity Commission issued its long-awaited proposed regulations that address employer wellness programs under the Americans with Disabilities Act (“the proposed rule”). Workplace wellness programs may include, for example, nutrition classes, onsite exercise facilities, weight loss and smoking cessation programs, and/or coaching to help employees meet health goals.
The proposed rule provides guidance on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs. The proposed rule clarifies that an employer may offer limited incentives up to a maximum of 30 percent of the total cost on employee-only coverage, whether in the form of a reward or penalty, to promote an employee’s participation in a wellness program that includes disability-related inquiries or medical examinations as long as participation is voluntary. (This 30 percent maximum generally is the same allowable incentive available under HIPAA and the Affordable Care Act for health-contingent wellness programs.) Depending upon how they are structured, different rules may apply to tobacco cessation programs.
The proposed rule also addresses other issues relevant to wellness programs under the ADA, including confidentiality, notice requirements, reasonable accommodation, and additional requirements for a program to be considered voluntary.
The proposed rule will officially be published in the Federal Register on Monday, April 20, which will launch a 60-day period for public comments.
Fox Swibel partner Kelly Smith Haley has written previously on this topic and will be giving a timely presentation on wellness programs and the ADA at the Prevention and Well-Being national conference in San Diego on May 5.
Fox Swibel’s employment law team will continue to monitor developments in this area and plans to devote significant attention to this topic in an upcoming client seminar to be held in June, the details of which will be announced soon.
This article was written by Steven L. Brenneman who is the Chair of the Employment Law Group at Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. He can be reached at firstname.lastname@example.org