An employee wellness program, also called a “worksite wellness program”, is intended to promote and support employee health, safety, and well-being and “increase productivity, boost morale, and reduce stress”. Following a handful of discrimination lawsuits relating to these programs, the Equal Employment Opportunity Commission (EEOC) recently issued two new rules under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) that offer parameters for employers.
One parameter is the requirement that employers provide employees with notice concerning the purpose of, and limits on, the wellness program. The notice must outline what information will be collected, who will receive it, how it will be used, and how it will be kept confidential. Employees must receive the notice before providing any health information and with enough time to decide whether to participate. Not surprisingly, the EEOC indicated that these notices will be closely scrutinized and can be used in litigation when an employee claims that they were unaware that a particular test was part of a wellness program. Employers would be well-advised to obtain written acknowledgment of receipt of the notice from employees, the details of which can be discussed with experienced legal counsel.
Second, employers must ensure that their wellness programs are voluntary, reasonably designed to promote health and prevent disease, and that employee medical information is kept confidential. While employers cannot require employees to participate or deny or limit health insurance to non-participants, they can encourage participation through limited 
financial and other incentives. Permissible incentives under the rule are calculated based on a percentage of the cost of self-only health insurance coverage. For more information, speak with your business lawyer.
Employers must be prepared to provide notice as described above on the first day of the plan year that begins on or after Jan. 1, 2017 for the plan that an employer uses to calculate the incentive limit.
To discuss your company’s wellness program, contact business attorney Drew E. Pomerance today.
