Hello hello! Enjoying the nice weather? Good, good. Amidst all this relaxing, there is an important topic to discuss: the general rules of employer-offered wellness programs and compliance with ADA. Due to the tracked growth in workplace wellness programs by The Employer Health Benefit Survey, it seems imperative to mention the basics for all those pondering wellness programs for your own workplace.
A wellness program must be “reasonably designed to promote health or prevent disease.” The structure of the program you offer, or design needs to have a realistic opportunity to improve health and/or prevent diseases for those who choose to participate. This program cannot manipulate an unreasonable amount of one’s time, involve invasive procedures, or incur significant costs.
The ADA requires employers to make all wellness programs, even those that do not collect health information, available and voluntary to all employees, keep all medical information confidential, and to provide reasonable accommodations to employees with disabilities.
What does this mean? First, the program is required to be offered to every employee. The ADA does prohibit employers with 15 or more employees from discriminating against individuals with disabilities. It also needs to be voluntary, which signifies no requirement to participate in the program. Employees cannot be denied health coverage or specific benefits of the employer plan. Employers cannot take adverse actions against employees who choose to not participate, answer certain questions, or undergo medical exams. The EEOC did remove incentive limits, effective January 2019, but they have proposed a rule in 2021 that states “incentives cannot be so substantial as to be coercive.” Unfortunately, it was withdrawn due to the proposition not being published as of President Joe Biden’s inauguration date.
Secondly and quite importantly, all medical information collected needs to be kept confidential, in compliance with the ADA and HIPAA.
In addition to being made available to every employee, employers should structure their programs to ensure that individuals with disabilities who choose to participate have equal access to the benefits and are not required to complete additional demands to obtain them. Also, employers must provide reasonable accommodations that enable employees with disabilities to fully participate in the program. For example, an employer that offers an incentive for employees to attend a nutrition class must provide a sign language interpreter for an employee who is deaf and needs one to participate in the class.
Lastly, the EEOC requires employers to provide a notice “that describes what medical information will be collected, who will receive it, how the information will be used and how it will be kept confidential.” There is no specified time warning, but the employees should be given enough time before the information is collected to be notified and decide to participate or not.
Here is a sample notice that employers can follow to be compliant.
Good luck and go forth, in compliance with the EEOC and ADA, with your wellness programs!