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