As employee medical insurance costs continue to increase, many employers have developed “Wellness Programs” designed to encourage employees to engage in a more active, healthier life-style. Many employers offer weight loss, smoking cessation, and stress management programs, just to name a few. While the Affordable Care Act (ACA) promotes such plans, many employers have soon realized that their plans were challenged by the United States Equal Employment Opportunity Commission (EEOC) as being in violation of the Americans With Disabilities (ADA) and the Genetic Information Nondiscrimination Acts (GINA), because the plans either did, or could, be administered to discriminate against employees with disabilities or to make use of medical information in ways not countenanced by GINA.

On April 16th, the EEOC published Proposed Regulations which, if adopted, will give employers guidance on how to create and administer Wellness Programs that do not contravene the ADA and GINA. The comment period on the proposed rule making ends on June 19, 2015. Employers that have or anticipate adopting Wellness Programs should familiarize themselves with the proposed rules and consider whether making comment on them to the EEOC is in their interest.

The Americans with Disabilities Act prohibits discrimination in the workplace based on an employee’s disability where a qualified employee can perform the essential functions of a job with or without reasonable accommodation. The ADA prohibits employers from soliciting medical information from employees which could be used to discriminate on the basis of a disability.

The Americans with Disabilities Act prohibits discrimination in the workplace based on an employee’s disability where a qualified employee can perform the essential functions of a job with or without reasonable accommodation. The ADA prohibits employers from soliciting medical information from employees which could be used to discriminate on the basis of a disability. Other federal statutes, such as the Genetic Information Nondiscrimination Act, or GINA, and the Health Insurance Portability and Accountability Act, or HIPAA, likewise prohibit employers from obtaining or using medical information for improper purposes.

On the other hand, the Affordable Care Act permits employers to offer financial incentives to encourage employees to participate in wellness programs that promote healthful lifestyles, thereby lowering health insurance costs. The ACA provides an exemption from applicability of the ADA with respect to outcome-based wellness programs that meet certain standards. Notwithstanding this exemption, acting under the ADA, the Equal Employment Opportunity Commission has filed lawsuits against employers that have established wellness programs which, in the agency’s opinion, discriminate based on an employee’s disability. Such suits have been brought when employers withheld or withdrew health benefits based on an employee’s refusal to participate in a wellness program; when an employee’s employment was terminated because of a refusal to provide health-related information ostensibly sought in connection with a wellness program; and when employees who refused to provide health-related information faced financial penalties.