United States: EEOC Issues Proposed Regulations On Wellness Programs And The ADA

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued highly anticipated proposed regulations addressing the application of the Americans With Disabilities Act (ADA) to workplace wellness programs. In recent years, the EEOC has been sharply criticized for challenging employers' wellness programs under the ADA despite not having issued regulations addressing those programs. Its willingness to bring litigation against employers combined with its inaction on the regulatory front have been widely viewed as having a chilling effect on employers' adoption of wellness programs.

Executive Summary

Under the proposed regulations, a wellness program offered as part of an employer's group health plan can comply with the ADA if the following conditions are satisfied:

  1. the program is reasonably designed to promote health or prevent disease;
  2. participation in the program is voluntary;
  3. reasonable accommodations are made for employees with disabilities;
  4. the employer provides notice to employees explaining what medical information will be obtained and how that information will be used and disclosed; and
  5. restrictions are placed on how the medical information can be collected by the employer and disclosed to others.

A Primer on Existing Regulations

The proposed regulations reference final regulations that were issued by three governmental agencies in June 2013. Briefly, these regulations distinguish between "participatory" and "health contingent" wellness programs. Participatory programs merely require participation and any reward is not contingent upon satisfaction of a standard related to a health factor. Generally, participatory programs are permitted under existing regulations provided they are made available to all similarly situated individuals. By contrast, health-contingent programs require individuals to satisfy a standard related to a health factor (e.g., cholesterol levels below 200 mg/dL) or require individuals to complete an activity related to a health factor (e.g., individuals with high cholesterol levels must attend an educational session on heart disease) to obtain a reward. Health-contingent programs are subject to numerous additional requirements, including a requirement that rewards not exceed 30 percent of the total cost of employee-only coverage under a plan (or up to 50 percent if attributable to tobacco prevention or reduction).

Wellness Programs Must Be "Voluntary"

The proposed regulations also build upon existing EEOC regulations. For example, existing regulations prohibit employers from making "disability-related inquiries or requiring medical examinations" with a limited exception for "voluntary" medical histories and examinations which are part of an employee health program. The proposed regulations clarify that a program is "voluntary" if the employer does not: (1) require employees to participate; (2) deny coverage under its group health plans or particular benefit package within a group health plan for nonparticipation or limit the extent of such coverage (except pursuant to allowed incentives); or (3) take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees. Further, the employer must provide a notice that clearly explains what medical information will be used, the restrictions on its disclosure, and the methods employed to prevent improper disclosure of the medical information.

The proposed regulations clarify that incentives must be limited to prevent economic coercion that could render provision of medical information involuntary. If a participatory wellness program includes a disability-related inquiry such as a health risk assessment or requires a medical examination, the 30 percent limit described above applies. Furthermore, if employees must undergo a biometric screening or medical examination in connection with a tobacco cessation or reduction program, the 30 percent limit (and not the 50 percent limit) described above applies.

Wellness Programs Must Be Reasonably Designed to Promote Health or Prevent Disease

As under existing regulations, wellness programs must be reasonably designed to promote health or prevent disease. For the EEOC, this means that they: (1) must have a reasonable chance of improving the health of, or preventing disease in, participating employees; and (2) must not be: (i) overly burdensome; (ii) a subterfuge for violating the ADA or other laws prohibiting employment discrimination; or (iii) highly suspect in the method chosen to promote health or prevent disease.

A wellness program cannot condition a reward on an overly burdensome amount of time for participation, use unreasonably intrusive procedures, or place significant costs related to medical examinations on employees. If an employer collects medical information on a health questionnaire, it should provide follow-up information or advice, such as providing feedback about risk factors or using aggregate information to design programs to treat any specific conditions.

Reasonable Accommodations

Absent undue hardship, reasonable accommodations must be provided to employees with disabilities. Under the proposed regulations, the reasonable accommodations requirement applies to both participatory and health-contingent programs. For example, an employer might have to provide a sign language interpreter for a deaf employee attending a nutrition class or a large-print version of written materials for an employee with impaired vision. Also, if an employee has a disability that makes drawing blood dangerous, an alternative test or certification requirement would have to be provided for a biometric screening that includes a blood draw.

Notice to Employees

If a wellness program is integrated with a group health plan, as many are, employees must be provided a notice that describes: (1) the type of medical information that will be obtained; (2) the specific purposes for which the medical information will be used; (3) restrictions on the disclosure of the employee's medical information; (4) the employer representatives or other parties with whom the information will be shared; and (5) the methods that the covered entity will use to ensure that medical information is not improperly disclosed, including whether it complies with HIPAA privacy rules. The notice must be written so that the employee from whom medical information is being obtained is reasonably likely to understand it.

Restrictions on Disclosure of Medical Information

The proposed regulations restrict how medical information collected through wellness programs may be disclosed. An employer may receive the information only in aggregate terms that do not disclose, and are not reasonably likely to disclose, the identity of specific individuals except as necessary to administer the health plan. If the wellness program is administered by a third party, the aggregate information must be de-identified in accordance with the HIPAA privacy rules.

Medical records must be maintained confidentially and cannot be used for improper purposes. If a wellness program is integrated with a group health plan, the medical records are subject to the full panoply of HIPAA privacy laws.

Request for Comments

The EEOC has requested comments on the new rule. The EEOC has specifically requested comments about: (1) whether a wellness program that asks an employee to respond to disability-related inquiries or undergo medical examinations should be considered "voluntary" if health insurance coverage without the incentive would be "unaffordable" for the employee under the Affordable Care Act; and (2) whether individuals should be entitled to incentives if, in lieu of providing medical information through a wellness program, they provide certifications from medical professionals stating that they are under the care of a physician and that any medical risks identified by that physician are under active treatment. The comment period on the proposed regulations will close on June 19, 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions