On April 16, 2015, the EEOC released a proposed rule and interpretive guidance on the manner in which an employers wellness program may comply with Title I of the Americans with Disabilities Act (ADA). Importantly, the rule and guidance do not address the manner in which Title II of GINA governs incentives contained within a participatory wellness program. The EEOC will address this issue in future rulemaking.
Following the EEOC's lawsuit against Honeywell Intl. concerning a wellness program that complied with the PPACAs regulatory requirements, there were regulatory inquiries for the EEOC to clarify when a wellness program is considered ғvoluntary for purposes of complying with the ADA. The lawsuit alleged that HoneywellԒs biometric testing of employees and their spouses was not voluntary because the company imposed certain penalties on those who did not participate in the testing. To comply with the ADA, wellness programs that include disability-related inquiries or medical examinations must be voluntary; however, the EEOC previously had not provided guidance on the definition of voluntary.
The proposed rule amends the EEOCs regulations on medical examinations and outlines the conditions for a program to be deemed voluntary. For example, one condition requires that the employer not deny coverage under any of its group health plans or retaliate against the employee for non-participation in the wellness program. Notably, the rule applies to participatory programs, health-contingent programs or some combination of the two.
Additionally, the proposed rule clarifies that incentives for wellness programs that include disability-related inquiries or medical examinations will not render the program involuntary if the total incentives available under the program do not exceed 30 percent of the total cost of employee-only coverage. The rule also noted that smoking cessation programs that include a biometric screening or other medical exam to test for the presence of nicotine or tobacco would have to comply with the ADAҒs 30 percent incentive limit. The EEOC reminds employers that the ADA only applies to wellness programs that include disability-related inquiries or medical examinations. Thus programs that require an individual to attend nutrition, weight loss or smoking cessation classes would not have to comply.
The EEOCs guidance also reminds employers that reasonable accommodations must be provided to allow a disabled employee to earn any financial incentive offered through the wellness program; however, the EEOC clarified that the reasonable accommodation requirements under the ADA are broader than those under the PPACA. Under the ADA, reasonable accommodations must be provided in connection with a participatory program whereas HIPAA and the PPACA limit these requirements to health-contingent programs.
The proposed rule was published in the Federal Register April 20, 2015 and comments are due by June 19, 2015. The EEOC is specifically seeking comments on whether it would be appropriate to provide that incentives employers offer to employees for participatory wellness programs that render the cost of coverage unaffordable should result in the program being deemed involuntary under the ADA. While this proposed rule provides much needed clarification, employers are not required to rely upon the proposed rule at this time, and this summary is provided as informational in nature only. Once the comment period closes, a final rule with effective dates will be issued at some point in the future. Employers will be required to comply with these rules once they are issued in their final form.
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