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After trying to leap before looking by filing a lawsuit against a major Minnesota corporation for violating a practice the EEOC never formally said was unlawful, the EEOC has sought to remedy its failing by issuing preliminary guidance for company use of wellness plans. It should be anticipated that soon corporations will have a clearer understanding of what inquiries are allowed of employees and how to structure wellness plan incentives.

Wellness plans have presented legal issues for employers since inception. On one hand the Department of Labor has expressly supported the use of wellness plans as part of an employee incentive program and to encourage group medical insurance cost savings. On the other hand the EEOC has made it clear that except in limited circumstances, employers cannot inquire into employees’ medical histories, as that is prohibited under the ADA. This limitation is a potential problem for wellness programs that have health risk assessments and/or bio-metric tests.

Final regulations are not imminent, but the proposed regulations are idicative of the limitations employers who sponsor wellness programs should begin to be aware of. Some key points to the proposed regulations from the EEOC:

Wellness programs must be reasonably designed to promote health or prevent disease.

  • They must have a reasonable chance of improving health or preventing disease in participating employees, must not be unduly burdensome to employees, and must not violate the ADA.

  • A program that collects information on a health risk assessment to provide feedback to employees about their health risks, or that uses aggregate information from health risk assessments to design programs aimed at particular medical conditions is reasonably designed. A program that collects information without providing feedback to employees or without using the information to design specific health programs is not.

Wellness programs must be voluntary.

  • Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.

  • Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.

  • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

This list is not exhaustive of the regulatory requirements for wellness programs, but it is helpful in that it provides guidance on walking the fine line of creating a viable program that does not violate the ADA. Regulations are proposed currently and comments will be accepted through June 19.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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