Hunton Employment & Labor Perspectives

We have written on several occasions about the Equal Employment Opportunity Commission’s (“EEOC”) proposed rules on wellness programs, and the extent to which employer-sponsored wellness plans must comply with the Americans with Disabilities Act. The new rules were finalized in May 2016 and state that employers may offer limited financial and other incentives to employees to participate in wellness programs.

A wellness program is a program implemented by an employer to improve the health of its labor force. The scope of these programs can vary greatly. As long as wellness programs are voluntary, employers may offer incentives, such as financial incentives, for participation. If employers choose to offer wellness programs there are certain precautions they should consider, according to the EEOC. For example, employers cannot require wellness programs as a condition of employment; employers must ensure that wellness programs “are reasonably designed to promote health and prevent disease, that they are voluntary, and that employee medical information is kept confidential;” and employers may not limit health insurance for those who do not participate in wellness programs.

On June 16, 2016, the EEOC issued a sample notice for employers offering wellness program. Employees must receive a notice describing what information will be collected, who will receive it, how it will be used, and how it will be kept confidential. Notice must be provided by either the employer or the wellness program provider. The sample explains to wellness program enrollees that they will be asked to complete a voluntary health risk assessment and biometric screening. It also explicitly says that they will not be discriminated against because of any medical information they provide or because they choose to not participate and that their health information “will not be sold, exchanged, transferred or otherwise disclosed.” While employers are not required to use the EEOC’s sample notice language, any notice given must spell out the same requirements in plain language. Additionally, the EEOC provides a brief question-and-answer document describing the notice requirement and how to use the sample notice.