It is not clear. Federal law requires that employers cannot ask workers questions about their health or disability status or genetic information except in limited circumstances, including through voluntary workplace wellness programs.
When these laws were first passed, regulations and guidance initially defined “voluntary” to mean a program that neither requires participation nor penalizes individuals for not participating. In 2016, regulations were amended to define a “voluntary” workplace wellness program to include those that apply penalties for non-participation as large as 30 percent of self-only coverage under the health plan. However, a federal judge later ruled that these financial incentive standards were not justified by the federal government and vacated that part of the regulation for employer plan years beginning on or after January 1, 2019. The Federal Equal Employment Opportunity Commission indicated it would revisit this regulation in 2019 but, to date, it has not acted.
The regulation established other requirements that remain in effect for wellness programs that collect personal health information include:
For more information about workplace wellness program rules, or to file a complaint, contact the Federal Equal Employment Opportunity Commission (EEOC) at https://www.eeoc.gov/contact/index.cfm