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. Those regulations were amended in 2016 to permit “voluntary” wellness programs with sizeable financial penalties for not participating. However, a federal judge later vacated that incentive/penalty standard, and the Federal Equal Employment Opportunity Commission has not published any further regulations on this question.
Other standards that do apply to workplace wellness programs that collect personal health information include:
- The program must be “reasonably designed,” meaning there must be a reasonable chance that it could promote health and wellness.
- The wellness program can access personal health information, but it cannot share identifiable information with the employer to use for employment purposes, such as hiring or promotion.
- The wellness program that collects personal health information must either use information to design programs to address or treat employee health problems, or provide feedback to individuals about their risk factors.
- Wellness programs that collect personal health information must provide a notice that clearly explains what medical information will be obtained, how it will be used, who will receive it, and restrictions on disclosure that apply.
- Wellness programs cannot, as a condition of participating in the program or earning an incentive, require people to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information (except to the extent otherwise permitted under a reasonably designed program.)
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