EEOC offers proposed rules, takes new stand on wellness programs

The Equal Employment Opportunity Commission unveiled two notices of proposed rulemaking (NPRs) regarding what you can do to encourage workers to participate in corporate wellness programs without violating the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

What new proposed rules require

The proposed rules, released on January 7, require employers to "offer no more than de minimis incentives" to entice workers to take part in most wellness programs. To encourage employees to take part in "a subset of wellness programs that are part of employer health plans," however, you can raise or lower their insurance contributions by up to 30% (or 50% to the extent the wellness program is designed to prevent or reduce tobacco use).

The proposed rules harmonize (1) the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Patient Protection and Affordable Care Act (ACA), which allows employers to offer incentives up to 30% of the total cost of health insurance to encourage participation in certain types of wellness programs (or 50% to the extent the program is designed to prevent or reduce tobacco use) with (2) the ADA, which requires employee participation in a wellness program that includes medical questions and exams to be "voluntary."

The rules also integrate the HIPPA regulations with GINA's requirement that employers can't request, require, or purchase genetic information from employees unless, as relevant here, the details are part of a "voluntary" wellness program.

Recent history of wellness regulations