Debra Friedman, a member of Cozen O’Connor’s Labor & Employment Department, comments on the EEOC’s proposed rule on wellness programs differing from HIPAA’s wellness program incentives in that it extends the 30 percent limit on incentives under health-contingent wellness programs to participatory wellness programs that require disability-related inquiries or medical examinations. HIPAA places no limits on incentives for participatory wellness programs and permits incentives as high as 50 percent of the total cost of employee health coverage for wellness programs that are designed to limit or prevent tobacco use. Accordingly, under the EEOC’s proposed rule, if biometric screening or other medical examinations that test for the presence of nicotine or tobacco are part of a tobacco cessation program, the program would be subject to the 30 percent cap on incentives. Debra states that if the EEOC’s rule is finalized, without changes, “employers will need to evaluate what information is required for employee participation in the tobacco cessation program. Employers may choose to restructure any programs that currently require disability-related inquiries or medical examinations if they want to offer incentives greater than 30 percent, and up to 50 percent, of the total cost of employee-only health insurance coverage.”
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