On April 16th the Equal Employment Opportunity Commission issued proposed amendments to its ADA regulations to address the growing use of workplace wellness programs. The EEOC will now entertain comments submitted by any interested parties, before issuing its final rule on the subject.  Therefore, employers currently using such programs to promote employee health while reducing insurance costs, as well as anyone contemplating the use of a wellness program in the future, should familiarize themselves with the proposed rule and take issue with them through timely submitted comments. 

A typical wellness program can include things such as nutrition classes, gym access, and weight loss or smoking cessation programs.  Some of these programs include health risk and biometric screening.  Additionally, some employers provide incentives to encourage participation, or for reaching certain health goals.  Although many employers who provide these programs are mindful of the Affordable Care Act (ACA) when designing them, they may overlook other laws that can be implicated. In particular the Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to allow individuals with disabilities to have equal access to fringe benefits.  In addition, the ADA generally prohibits employers from making disability-related inquiries or requiring medical examinations, unless doing so is "job-related and consistent with business necessity."  However, there is an exception to this general prohibition for voluntary medical examinations and medical histories that are part of an employee health program available to employees at the work site.  The proposed regulations assume that at a certain point employer incentives for participating in a wellness program may be so substantial that they render an employee's submission to disability-related inquiries or medical examinations as part of the program involuntary, and therefore unlawful under the ADA.