Will EEOC’s New Wellness Regs Make You Sick?

By Just John

The EEOC has broadcast proposed regulations on wellness programs. For all the details, visit https://www.federalregister.gov/articles/2015/04/20/2015-08827/regulations-under-the-americans-with-disabilities-act-amendments. In short, the proposed regs attempt to reconcile (a) Obamacare provisions encouraging wellness programs, (b) the ADA’s approval of medical examinations that are truly voluntary, and (c) the EEOC’s ongoing crusade against wellness programs. Much of the EEOC’s attempt to square this triangle of contradictions boils down to determining when wellness programs that require medical examinations are really, truly voluntary. Part of the regs will require new communications from our employer-sponsored welfare plans; in language “employees are reasonably likely to understand,” the plans have to describe medical information to be obtained as part of the wellness plan, the purposes for its use, the restrictions on disclosure of the employee’s medical information, the entities with whom it will be shared, and the methods used to protect the information. The EEOC is accepting (and rejecting) commentary on the proposed regulations through mid-June before moving forward to convert them into final rules. The EEOC also approved a 30% incentive/penalty framework for incentivizing participation in wellness programs.