EEOC issues final wellness rule: What’s allowed, what isn’t

by Christian Schappel

Finally, employers have the info they’ve been seeking on how to design their wellness programs so they don’t violate the ADA — or other federal laws. 

The EEOC has been promising for a while now to clear the air when it comes to what kinds of wellness incentives are legal — and when non-participation penalties become so steep as to render a wellness program “involuntary” and, thus, illegal under the ADA.

Now, more than a year after the EEOC issued a proposed rule on the subject, the final rule has dropped. (Spoiler alert: It closely mirrors the proposal.)

The problem

Here’s the problem the final rule was meant to address: When the ADA was passed in 1990, it said it was permissible for employers to conduct medial inquiries and examinations of employees as part of “voluntary” “health programs” (a.k.a., wellness programs). The problem was those two terms were never clearly defined.

Then along came HIPAA and the ACA, which said employers could offer incentives to encourage employees to participate in wellness programs — so that’s what employers did.

Fast forward to 2014. With healthcare costs skyrocketing, some employers got pretty aggressive in their wellness plans, tying bigger incentives (i.e., penalties) to non-participation.

Then the EEOC got the itch to start going after employer wellness programs it felt punished employees too harshly for not participating in wellness initiatives.

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