Because employers have discriminated against workers with various medical conditions, as part of the Americans with Disabilities Act (ADA), employers are limited in what they can ask of employee’s medical conditions and generally cannot require medical exams.
The wellness programs sometimes require exams or risk assessments as part of creating a baseline for the employees overall health. And submitting to these assessments may be required in order to receive some savings for the employee’s cost of their health care.
This has raised concerns that these programs could become coercive and virtually force employees to comply by taking these risk assessments or exams or wind up paying significant penalties for failing to sign up or face other adverse job action.
The U.S. Equal Employment Opportunity Commission (EEOC) has now proposed standards for these programs that would allow incentives of up to 30 percent of the health insurance premium for the employee.
Employers are likely to be relieved that the rulemaking allows incentives or penalties for wellness programs, which functionally become the same thing for the employee when money is involved. The new rule also contains additional requirements to ensure that participation is voluntary. Employers cannot require participation, deny coverage and engage in retaliation or adverse job actions against any employee who does not participate.
While the proposed rulemaking appears to have given businesses additional guidance and allows the use of financial incentives, there are still concerns regarding the confidentiality of the information and conflicts with other government agencies interpretations of the ACA and the ADA interaction, which are likely to be noted during the 60 public comment period.
eeoc.gov, “EEOC Issues Proposed Rule on Application of the ADA to Employer Wellness Programs,” April 16, 2015