Can an employer establish a wellness plan without running afoul of the ADA? Recently, the EEOC published proposed regulations to provide guidance to employers on how to set up plans that stay within the law’s requirements. View more at ADA: Employee Rights and Employer Obligations -http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&skuId=SKU10343&catId=117&prodId=10343&utm_campaign=LexTalk-Legal%20Content%20Insider&utm_source=LCI&utm_medium=referral&utm_term=ADA-Mook

1. [b] Wellness Programs Under the ADA
A growing number of employers today are offering voluntary “wellness” programs in the
workplace. These programs may include the taking of a medical history, as well as a variety of employee
health programs such as:
• Blood pressure testing;
• Weight control;
• Cholesterol screening;
• Stop-smoking clinics; and
• Cancer detection.
The ADA recognizes the benefits of such programs by specifically exempting them from the Act’s
strictures as long as the programs are voluntary and the medical information that is generated is used in a
manner consistent with the ADA’s requirements.136
In this regard, the EEOC requires that the medical
records of a wellness program:
• Must be maintained in a confidential manner, in files separate from the employee’s personnel
file;
• Cannot be used to limit health insurance coverage eligibility; and
• Cannot be used to take adverse employment action or deny promotional opportunities.137
136
A covered entity may conduct voluntary medical examinations, including the taking of voluntary medical
histories, which are part of an employee health program available to employees at that work site. 42 U.S.C.
§ 12112(c)(4)(B), ADA § 102(c)(4)(B).
See also EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act, No. 915.002 (July 27, 2000), paragraph 22 (“the ADA allows employers
to conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an
employee health program without having to show that they are job-related and consistent with business necessity as
long as any medical records acquired as part of the wellness program are kept confidential and separate from
personnel records.”).
137
29 C.F.R. App. § 1630.14(d), 56 Fed. Reg. 35,726, 35,751 (1991).
See also H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. at 75 (1990) (House Committee on Education and Labor);
H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. at 43–44 (1990) (House Judiciary Report).
The EEOC has issued a Notice of Proposed Rulemaking on the application of the ADA to employer
wellness programs that are part of group health plans. See EEOC, Proposed Rule, “Amendments to
Regulations Under the Americans with Disabilities Act,” 80 Fed. Reg. 21659 (Apr. 20, 2015).

2. In addition to “wellness” programs, an employer also may contract with an Employee Assistance
Program (EAP) to enable employees to voluntarily and confidentially seek professional counseling for
personal and “work-related problems.” The EEOC has recognized the value of these programs and has
taken the position that an EAP counselor may ask an employee seeking help for personal problems about
any physical or mental conditions that the employee may have as long as the following requisites apply:
(1) the EAP counselor does not act for or on behalf of the employer; (2) the counselor is obligated to
shield any information the employee reveals from the decision makers of the employer; and (3) the
counselor has no power to affect employment decisions.137.1
#Comment Begins
NOTE
Employers may offer their employees certain incentives to encourage participation in employee
health programs. For example, an employer-sponsored weight loss clinic may give recognitional prizes to
those employees who lose a certain number of pounds; alternatively, an employer may give a cash award
to employees who participate in a stop-smoking program. None of these incentives should render a
wellness program involuntary and, hence, unlawful under the ADA. Neither the statute nor the EEOC’s
regulations specifically define the term “voluntary.” However, consistent with the purposes of the ADA,
as long as an employee is not required to participate in an “employee health program” as a condition of
employment, participation should be considered “voluntary.”138
The EEOC’s proposed rule specifically revises Section 1630.14 of its regulations to provide
guidance on how wellness programs offered as part of an employer’s group health plan should be
fashioned to comply with the requirements of the ADA and still be consistent with the provisions
governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as
amended by the Affordable Care Act (ACA). The EEOC’s proposal makes clear that medical inquiries or
medical examinations as part of an employee health or wellness program are allowed under the ADA if
the inquiries and examinations truly are voluntary and used only for purposes of the program. Employees
may not be required to participate in an employer’s wellness program. The EEOC’s proposed rule,
however, does allow a company to offer “incentives” (whether as a reward or penalty) to encourage
employees to participate, including in “health risk assessments” and biometric testing, which constitute
medical tests and inquiries subject to the ADA’s rules restricting disability-related inquiries of incumbent
employees. The EEOC proposes that to be lawful, wellness incentives must be consistent with the
general incentive limit under HIPAA of 30 percent of the total cost of employee-only coverage. EEOC
also proposes such 30 percent limits on “incentives” to participate in purely participatory wellness
programs (e.g., taking exercise classes). Under HIPAA, there are no limits on such incentives.
137.1
EEOC, Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees Under
the Americans with Disabilities Act, No. 915.002 (July 27, 2000), paragraph 20.
See also Vardiman v. Ford Motor Co., 981 F. Supp. 1279, 1283 (E.D. Mo. 1997) (finding no ADA violation where
EAP representative had no power to affect employment decisions and, in fact, was obligated to shield from the
employer the employee’s personal or substance abuse problems).
138
Under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34, financial incentives to encourage
employees to accept early retirement are considered “voluntary” as long as the employee has the choice to continue
working. See Henn v. National Geographic Soc’y, 819 F.2d 824 (7th Cir.), cert. denied, 484 U.S. 964 (1987). Such
incentives are voluntary even if the offer is viewed as being too good to refuse or the choice is a difficult one.

3. #Comment Ends