On May 16, 2016, the EEOC issued final rules that explain how the Americans with Disabilities Act (“ADA”) applies to employer sponsored wellness programs. Although some may welcome the guidance, others may be frustrated because the rules are somewhat inconsistent with the rules under HIPAA, inconsistent with the court decisions under Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012) and EEOC v. Flambeau, Inc., 131 F. Supp. 3d 849 (W.D. Wis. 2015), and do not ensure compliance with other federal nondiscrimination laws (e.g., Title II of GINA or other Sections of Title I of the ADA).
The final rules apply to “employee health programs,” which include any disability-related inquiries or medical examinations that are part of such programs. An employee health program must be reasonably designed to promote health or prevent disease. Additionally, it must satisfy the ADA’s voluntary standard, and contrary to Seff and Flambeau, may not rely on the ADA’s safe harbor, as discussed in more detail in our April 11, 2016 blog post.
The EEOC will consider a wellness program voluntary if it:
- Does not require employees to participate;
- Does not deny coverage under any of its group health plans (including benefit packages) for...
