United States: EEOC Issues New Guidance On Employee Wellness Programs

Employee wellness programs are becoming increasingly popular in the workplace as a way to boost employee morale and increase productivity. If not carefully crafted, however, employee wellness programs can run afoul of Title I of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). In a Final Rule published on May 17, 2016, effective on July 16, 2016, the Equal Employment Opportunity Commission (EEOC) amended its regulations implementing the ADA and GINA to provide further clarification as to what is and what is not an acceptable employee wellness program.

ADA Amendments Limit Purpose and Scope of Wellness Programs

The amendments to the ADA focus on limiting the purpose and scope of permissible wellness programs. Generally, 29 C.F.R. § 1630 outlines the circumstances under which voluntary medical examinations and inquiries are permitted. An employee wellness or health program must be "reasonably designed to promote health or prevent disease"; this criterion is evaluated case-by-case based on the relevant facts and circumstances. Of note, programs that would not meet this standard are those that measure, test, screen or collect information but do not provide any follow-up advice as to how to improve health or prevent disease. A program designed to provide the employer with information to estimate future health care costs also does not meet this standard.

ADA Amendments Protect Employee Choice and Accessibility

The amended regulations require that employee health programs be voluntary, which means the employer must not (1) require employees to participate, (2) deny health care coverage to employees who do not participate, or (3) take any form of adverse employment action against or coerce employees who do not participate. In addition, employers must provide employees with a notice written in plain language that advises the employee what medical information will be obtained, how it will be used and restrictions on its use. Information obtained under employee wellness programs is still considered protected health information for purposes of HIPAA compliance. It is important to ensure that all information is kept confidential and that employees handling the information are well trained on their confidentiality obligations. Employers also must ensure that they do not receive the information in a manner that would disclose the identity of specific individuals.

Employers may offer incentives, including financial incentives, to encourage employees to participate in employee wellness programs. To help ensure that the incentive is not so great as to "coerce" employee participation, thus making the program involuntary, incentives may not exceed 30 percent of the cost of self-only coverage under the group health plan. Where an employer offers multiple health care coverage options, the incentive may not exceed 30 percent of the cost of the lowest self-only coverage of all the plans offered, even if the employee is not enrolled in the lowest-cost health care plan. Of note, the 30 percent limit on permissible incentives does not apply in the case of smoking cessation programs enacted pursuant to the regulations implementing the Affordable Care Act, which permit a financial incentive of up to 50 percent of the cost of self-only coverage.

Employers also are required to provide a reasonable accommodation to employees who want to participate in wellness programs and earn the financial incentives, but cannot do so due to a disability. For example, an employer who provides incentives for employees to attend nutrition classes would have to provide a sign language interpreter for a deaf employee, provided that doing so does not constitute an undue burden.

Finally, employers who implement an acceptable employee wellness program are not relieved of their statutory obligations not to discriminate against employees under Title VII of the Civil Rights Act, the ADA, the Equal Pay Act, the Age Discrimination in Employment Act or GINA.

GINA Amendments Enact Similar Limitations to Protect Employees and Their Families

Generally, 29 C.F.R. § 1635.8 bars an employer from obtaining genetic information about an employee or an employee's family member. This general prohibition does not apply to an employer's voluntary wellness program. To ensure that this exception applies, the program must be "reasonably designed to promote health or prevent disease." This standard, like that set out in the ADA guidelines, is evaluated by looking at all the relevant facts and circumstances. For example, programs that penalize an individual because his or her spouse suffers from a disease or disorder will not meet this standard. Information collected under the program actually must be used to design services that address the conditions identified in the information collected.

Employers may not offer incentives for employees to provide their genetic information, with two important exceptions:

  • Employees who have voluntarily provided genetic information indicating that they are at an increased risk of developing a condition in the future may receive incentives to participate in a disease management program. Employers also may offer incentives to employees for completing health risk assessments, so long as the receipt of the incentive is not conditioned on providing genetic information.
  • An employer may provide an incentive to an employee whose spouse completes a health risk assessment, except when the incentive is conditioned on receiving genetic information.

Nothing in the amended regulations eliminates an employer's obligation to treat genetic information as confidential and to maintain it in a medical file that is separate from the personnel file.

The amendments to the regulations implementing GINA adopt the same percentage limits on the value of incentives as those implementing the ADA. It is important to note, however, that GINA also contemplates spousal participation in a wellness program. In that case, the limitation on incentives is not aggregated per family. Thus, an employer may provide an incentive of up to 30 percent of the cost of the self-only coverage to both the employee and his or her spouse.

Employers may not ask employees to agree to permit the sale of their genetic information in exchange for participation in the wellness plan. Similarly, employers are prohibited from denying access to health insurance benefits or retaliating against an employee because his or her spouse refuses to provide information as part of the wellness program.

As with the ADA regulations, employers must make reasonable accommodations to allow an employee to participate in a wellness program so long as doing so does not constitute an undue burden. In addition, where an employer's wellness program provides medical care and rewards an individual for meeting a health standard, the employer must provide a reasonable alternative to earning any financial incentive. For example, a wellness program that rewards an employee for reaching a certain body mass index (BMI) must modify that standard for any employee who cannot reach that BMI for medical reasons, such as a thyroid condition, so that the employee can still earn the financial incentive.


The new guidance and changes to the regulations are designed to facilitate employer-sponsored wellness programs, a worthy benefit for both employers and employees. However, employers who sponsor such programs must ensure that the program is in complete compliance with what remain complicated legal requirements to avoid liability under the ADA and GINA.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.