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Proposed Equal Employment Opportunity Commission (EEOC) regulations, if finalized in their current form, would change the wellness landscape in five significant ways, writes Eric Athey at McNees Wallace & Nurick.

Financial Incentives: “The Affordable Care Act caps aggregate financial incentives that are offered under wellness programs at 30% of the applicable group health plan premium (and 50% for tobacco-related incentives).  The EEOC proposed regulations, on the other hand, would cap total financial incentives for participation in any wellness program(s) that involves employee medical inquiries (e.g. health risk assessments) or examinations (e.g. biometric testing) to 30% of the cost of employee-only coverage.”

Employee Notice Requirements: “If a wellness program is offered as part of a group health plan, employees must be provided with a notice that: (i) describes the type of medical information that will be obtained through the program and the purposes for which it is used; (ii) describes applicable restrictions on the disclosure of the employee’s medical information; and (iii) is written in a manner that the employee is likely to understand.”

Reasonable Design Requirement: “Wellness programs which include medical inquiries or examinations must be ‘reasonably designed to promote health or prevent disease.' The EEOC explains that medical information that is gathered through a wellness program must be put to a use that benefits program participants.”

Equal Benefit Rule: “Some employers have offered additional health plan options to wellness participants while non-participants are limited to participating in a single less generous plan.  The proposed regulations would prohibit employers from denying coverage under any group health plan or otherwise limiting the extent of benefits available to employees who do not participate in wellness programs.”

Non-Retaliation: “The EEOC proposed regulations further prohibit employers from taking any ‘adverse employment action' due to an employee’s decision not to disclose medical information or submit to medical exams in connection with wellness programs.”