Still No EEOC Guidance On Permissible Wellness Program Incentives

Despite the clear support for employers' continued and expansive use of wellness programs as a means of promoting health and preventing disease expressed in the Affordable Care Act and the recently-proposed rules implementing and expanding employment-based wellness programs [http://www.proskauer.com/publications/client-alert/new-guidance-on-wellness-programs-issued/], the Equal Employment Opportunity Commission ("EEOC") has still not provided more definitive guidance on permissible incentives in the wellness program context. Guidance issued by the EEOC has provided that, for a wellness program to be permissible under the Americans with Disabilities Act (the "ADA") and Title II of the Genetic Information Nondiscrimination Act of 2008, it must be "voluntary." To be voluntary, an employer may not require participation nor penalize employees who do not participate.