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HR Tip: EEOC issues final rule on wellness programs and guidance on leave as a reasonable accommodation under the ADA

Wellness programs

In May, the Equal Employment Opportunity Commission (EEOC) issued final regulations governing the treatment of wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

The final rules, which will go into effect January 2017, apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan.They cover a wide variety of issues, from financial incentives, defining "voluntary", and notice requirements to how the medical information gathered must be protected.

The total allowable incentive cannot exceed 30% of the total cost of self-only coverage. This is at odds with the Affordable Care Act (ACA), which authorizes incentives of up to 30% of the cost of coverage in which the employee is enrolled. Also, the ACA wellness program rules allow incentives of up to 50% for tobacco cessation programs. However, under the final rule, if an employer requires any biometric screening or other medical procedure that tests for the presence of nicotine or tobacco, the 30% incentive limit applies.

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Employer-provided leave and the ADA

While this new guidance doesn't carry the weight of official guidance, it is helpful in guiding employer decision-making when considering leave as an ADA reasonable accommodation. Attorney Jeff Novak, author of the blog,, notes the guidance offers illustrative examples and offers these highlights:

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