The Department of Labor's Equal Employment Opportunity Commission ("EEOC") has published a notice of proposed rulemaking to address how the Americans with Disabilities Act ("ADA") applies to employer wellness programs that are part of a group health plan.  The ADA generally restricts employers from obtaining medical information from employees by only allowing them to make medical inquiries in limited circumstances, including where inquires and exams are "voluntary" and part of an employee health program.  Prior to the issuance of this proposed rule, the EEOC had not taken a position on whether employers may offer incentives to encourage employees to participate in wellness programs or whether such an offer would effectively make employee participation involuntary.

The proposed rule establishes that companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs.  It describes factors that should be considered in evaluating whether a wellness program is "voluntary," including the fact that an employer may not require employees to participate, may not deny access to health coverage or limit coverage for non-participation, and may not take other adverse action, retaliate against, interfere with, coerce, intimidate or threaten employees who do not participate or who fail to achieve certain health outcomes.  The proposed rule would also require covered employers to provide employees with a notice that describes what medical information will be collected in conjunction with a wellness program, as well as with whom it will be shared, how it will be used and kept confidential.  Reasonable accommodations must likewise be provided to employees with disabilities to allow their participation in wellness programs and facilitate the receipt of any offered incentives.

More information about the proposed rule may be found in the EEOC's "Questions and Answers about EEOC's Notice of Proposed Rulemaking on Employer Wellness Programs."  Members of the public have until Friday June 19 to submit comments on the proposed rule.