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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







April 17, 2015


 Health and Welfare Law Alert




EEOC Issues Proposed Rules for Wellness Programs  





The U.S. Equal Employment Opportunity Commission ("EEOC") has released proposed rules that provide guidance to employers on how to structure wellness programs to comply with the Americans with Disabilities Act ("ADA") requirements. The proposed rule amends ADA regulations and guidance that apply to wellness programs that use incentives to encourage employees to answer disability-related questions and participate in medical examinations.


Background. Many employers offer "participation only" wellness programs in which employees attend periodic wellness seminars or complete a health risk assessment to obtain a reward such as a discount on the cost of health insurance. Some employers also offer "outcome based" wellness programs that condition the reward on the employee's reaching a certain health related goal such as achieving an appropriate blood cholesterol level or remaining tobacco-free.


The Affordable Care Act ("ACA") provides that a wellness program conditioning a financial incentive on the employee's meeting a standard related to a health factor is acceptable as long as it meets certain standards. Specifically, the ACA allows employers to offer employees financial incentives of up to 30% of their health care premiums for participating in, and reaching, certain health outcomes in a wellness plan and up to 50% for smoking cessation programs. (Health-contingent programs must also provide a reasonable alternative standard under which participants can obtain the reward; see the Alert of 6/6/13.)


While the ADA generally limits the circumstances where employers may ask employees about their health or require them to undergo medical examinations, it allows such inquiries that are voluntary and part of an employee health program. The ADA provides that employees must not be required to participate in wellness programs and employers may not deny access to health coverage or limit coverage under its health plans for non-participation. In addition, employers may not take adverse employment action or retaliate, interfere with, coerce, intimidate, or threaten employees who do not participate


In 2014, the EEOC filed several lawsuits against employers which alleged that their wellness programs violated the ADA. In so doing, EEOC has interpreted the ADA to preclude many incentive-based wellness programs, despite the ADA authorizing "voluntary" medical exams that are part of an employee health program and the ACA's provisions promoting wellness programs. The proposed rule attempt to provide guidance to employers on what constitutes a permissible wellness program in view of the ADA's protections.


Proposed Rule. The proposed rules include the following changes: 

  • Wellness programs, including disability-related inquiries and medical examinations that are part of such programs, must be reasonably designed to promote health or prevent disease. To satisfy this requirement, the program must provide "a reasonable chance of improving the health of, or preventing disease in, participating employees," and must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or be "highly suspect" in the method chosen to promote health or prevent disease. 
  • For wellness programs to be deemed voluntary, employers: (i) cannot require employees to participate in such programs and may not deny group health plan coverage or particular benefits packages within group health plans, (ii) generally may not limit the extent of coverages, and (iii) may not take any adverse employment actions against employees who refuse to participate in such programs or fail to achieve certain health outcomes. 
  • If the wellness program is part of a group health plan, the employer must furnish a notice that clearly explains what medical information will be obtained, how the medical information will be used, who will receive the medical information, the restrictions on its disclosure, and the methods the covered entity uses to prevent improper disclosure of medical information. 
  • Offering limited incentives to employees for participating in a wellness program that is part of a group health plan and that includes disability-related questions or examinations does not render a program involuntary as long as the total allowable incentive available under all programs does not exceed 30 percent of the total cost of employee-only coverage. 
  • The medical information collected through an employee health program may only be provided to a covered entity under the ADA in terms that do not disclose, or are not reasonably likely to disclose, the identity of specific employees, except as needed to administer the health plan and for other certain limited purposes.  

The proposed rule is available at:  https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-08827.pdf





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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.