Conference Call on EEOC's Proposed Wellness Rule Underscores Need for Employers to Weigh In

May 15, 2015

This week, in a wide-ranging conference call briefing on the Equal Employment Opportunity Commission's proposed wellness program rule, EEOC Commissioner Victoria A. Lipnic discussed provisions which appear to limit financial incentives to 30 percent of the cost of employee-only coverage, and noted that if this raises concerns for employers, "they need to make a clear and compelling legal argument in their comments on the rule."  The call was hosted by the Association’s Health Care Policy Chair Marc Reed, Chief Administrative Officer, Verizon Communications, Inc., who observed "that the EEOC came under a good deal of pressure from within and outside of the administration to update its 2000 guidance on what is a 'voluntary' wellness program under the ADA."   Commissioner Lipnic also discussed the proposed rule's provisions that:

  • Add several new terms to the definition of what is a reasonably designed wellness program beyond what is required by the ACA/HIPAA rules;

  • Prohibit wellness programs from denying coverage under any of a company's group health plans or particular benefits within a group health plan for non-participation; and

  • Limit financial incentives for smoking cessation programs that include biometric testing to 30 percent.
Commissioner Lipnic noted that while the proposed 30 percent cap on financial incentives only applies to wellness programs that are part of a group health plan, wellness programs outside of group health plans are still subject to the ADA’s "voluntary" requirements.  Several members on the call noted the proposed rule may have a significant impact on how their health benefits and wellness programs are structured, especially those that have gated plan designs that utilize health risk assessments and biometric screening.  HR Policy will be submitting comments on the proposed rule which are due on June 19, 2015, and we welcome your suggestions.  Please contact Mark Wilson at