Employers sometimes offer wellness programs to their employees as a benefit of employment or health care coverage. Wellness programs include payment of health club memberships; insurance premium reductions for engaging in healthful activities; exercise and dietary challenges; and even premium reductions for improving measures of health, such as weight, waist circumference, and blood pressure.
These programs have been challenged by the federal Equal Employment Opportunity Commission as allegedly violating the Americans with Disabilities Act. The ADA makes it illegal for employers to require medical examinations of their employees except under limited circumstances; however, there is an exception for voluntary health questionnaires.
The EEOC’s lawsuits have often challenged this voluntariness aspect of employee wellness programs. For example, it has argued that an employee wellness program is not voluntary if employees are penalized for failing to participate by being fired or by being made to take on full responsibility for insurance premiums.
Earlier this year, the EEOC published a proposed regulation to clarify its view on the voluntariness of employee wellness programs. The proposed regulation places several requirements on employee health and wellness programs, to ensure they are legal under the ADA:
- Reasonably designed to promote health or prevent disease
The proposed regulation allows wellness programs to offer incentives for participation. However, to be legal, the value of the incentive may not exceed 30 percent of the total cost of employee-only insurance coverage. In addition, reasonable accommodations must be offered to disabled employees to allow them to earn the incentives offered to others. These accommodations would include, for example, providing program descriptions in Braille for a visually impaired employee.
In providing these protections, the EEOC’s proposed regulation provides value to all employees and strengthens the protections of the ADA for disabled workers. It is anticipated that this regulation will go into effect later this year, after the period for public comment expires and any necessary revisions are made.
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