The EEOC has made a series of pro­posed rules, attempt­ing to clar­i­fy what does and does not con­sti­tute a per­mis­si­ble well­ness pro­gram in light of ADA (Amer­i­cans with Dis­abil­i­ties Act) and due to a recent series of dus­tups where the EEOC has ruled that the well­ness pro­grams run by some com­pa­nies were not meet­ing what they con­sid­ered to be prop­er stan­dards. The pro­pos­al makes some changes to cur­rent rules:

1) Pro­gram must be rea­son­ably designed to pro­mote health or pre­vent dis­ease – thus it must not be over­ly bur­den­some or a sub­terfuge for vio­lat­ing the ADA

2) To be tru­ly vol­un­tary an employ­er can­not require an employ­ee to par­tic­i­pate in such a pro­gram and may not deny cov­er­age under any of its group health plans or lim­it the extent of such cov­er­age, nor take any adverse action against employ­ees who refuse to participate

3) Employ­er must pro­vide a notice clear­ly explain­ing what med­ical infor­ma­tion will be obtained, how used, who will receive it and the meth­ods used to pre­vent disclosure

4) Incen­tives for par­tic­i­pa­tion are accept­able pro­vid­ed the total allow­able incen­tive avail­able under all pro­grams does not exceed 30% of the total cost of employ­ee only cov­er­age which gen­er­al­ly is the max­i­mum allow­able incen­tive avail­able under HIPAA and the ACA

5) Med­ical infor­ma­tion col­lect­ed through an employ­ee health pro­grams may only be pro­vid­ed to a cov­ered enti­ty under the ADA in aggre­gate terms so as to pro­tect the iden­ti­ty of spe­cif­ic individuals