EEOC Proposed Rules on ADA, ACA and Wellness Programs in the Works

Author: Rena Pirsos, XpertHR Legal Editor

March 31, 2015

The Equal Employment Opportunity Commission (EEOC) voted on March 20 to send a Notice of Proposed Rulemaking (NPRM) on the interplay of the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA) with respect to employer-sponsored wellness programs to the Office of Management and Budget (OMB) for approval.

In the absence of specific guidance in current regulations, the proposed regulations would clarify employer confusion regarding how voluntary workplace wellness programs can satisfy the requirements of both the ACA and the ADA without discriminating against employees based on health conditions. According to the EEOC, the proposed rule would "amend the regulations implementing the equal employment provisions of the ADA to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through group health plans."

Employee wellness programs are typically used to prevent illness by motivating employees to adopt and maintain healthful behaviors. These programs are popular with employers looking to reduce health care costs and can result in increased employee productivity and satisfaction.

The ACA updated the wellness rules under the Health Insurance Portability and Accountability Act (HIPAA), permitting the use of incentive-based programs and clearing the way for employers to expand upon existing wellness programs. Even though such programs are permitted under HIPAA and the ACA, when creating a wellness program, an employer needs to consider how the program interacts with federal antidiscrimination laws such as the ADA, the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA).

For example, the ADA's reasonable accommodation requirements and GINA's discrimination provisions may limit the design of incentive-based wellness programs. Additionally, wellness programs that provide rewards to employees for attaining certain outcomes, while penalizing employees who do not, may have an adverse impact on certain protected classes, such as older workers, women and minorities.

The EEOC's submission of the NPRM for OMB's approval represents the start of the regulatory process. After OMB approval, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period. The NPRM cannot be made public prior to its publication in the Federal Register.