EEOC Finally Issues Notice of Proposed Rulemaking Regarding Application of ADA to Employer Wellness Plans

On April 16, 2015 the EEOC finally issued its long-promised Notice of Proposed Rulemaking (“NPRM”). The NPRM may be viewed at: https://www.federalregister.gov/articles/2015/04/20/2015-08827/amendments-to-regulations-under-the-americans-with-disabilities-act#h-13. Members of the public have 60 days to submit comments. After this time, the rule may become final.

The NPRM offers guidance regarding how wellness programs offered as part of an employer’s group health plan can comply with the ADA and the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act.

While the ADA significantly limits an employer’s ability to make medical inquiries or require medical examinations of their employees, it allows such inquiries and exams if they are voluntary and part of an employee health program. The NPRM provides detailed guidance on how such a voluntary plan is to be managed by the employer.

Although it contains many other requirements, a key provision of the NPRM is that employers may offer incentives of up to a maximum of thirty percent (30%) of the total cost of employee-only coverage in connection with wellness programs and still retain the voluntary nature of the plan. Plans providing incentives in excess of thirty percent will not be considered “voluntary” and may be in violation of the ADA.

Employers should make themselves thoroughly familiar with the terms of the NPRM and consider its impact upon their wellness programs in anticipation of the Rule becoming effective later in 2015.

Mr. Stovall will present an educational presentation regarding the details of the NPRM after the public comment period. Please contact him directly if you would like to be invited to the presentation. jls@bswllp.com

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