On March 20th, the Equal Employment Opportunity Commission (EEOC) voted to send a Notice of Proposed Rulemaking on wellness programs and the interplay between the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA) to the White House Office of Management and Budget (OMB) for clearance. The EEOC announced that this proposed rule would amend ADA regulations to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through group health plans. Based on this information, it is clear that proposed regulations have been drafted, but the OMB needs to review and approve their release to the public through publication in the Federal Register. There is typically a 60-day period for comment following publication.
At the present time, a draft copy of the regulations is not yet available and will not likely be available until at or shortly before the time the proposed regulations are published in the Federal Register.
The ADA, which became effective in 1992, permits voluntary wellness programs but prohibits employers from collecting employee health data that is not job-related and consistent with business necessity. Later, laws enacted by Congress (notably, the ACA) and regulations promulgated by the Department of Health and Human Services have encouraged wellness programs within limits, and most practitioners have felt that the collection of information through “health risk assessments” and biometric screening did not violate the ADA. While the EEOC has not previously promulgated regulations concerning wellness programs, in 2014 the Chicago District Office of the EEOC filed lawsuits against certain Wisconsin and Minnesota employers alleging that their wellness programs violated the ADA. Sources have said that this litigation did not meet with universal approval by the EEOC commissioners and Washington D.C. staff and feel it is likely that the EEOC will address circumstances and processes under which future litigation is filed. The proposed regulations are likely to shed light on EEOC expectations of employers and what steps employers may take in the future concerning their wellness programs to reduce their “risk profile” with respect to EEOC concerns.
Employers that maintain wellness programs or who are contemplating establishing or changing them should follow this new guidance when it is issued. The interaction and conflict between wellness program rules issued pursuant to the ACA vs. EEOC expectations pursuant to the ADA continue to cause complications and exposure to challenge.