Research · 9 min read
What a Workplace Wellness Program May Ask, Under the Disability Rules
A health questionnaire at work is a medical inquiry, and the disability regulation only permits it if the program is voluntary and reasonably designed. The paragraph that once set a cap on the incentive is now marked reserved — while three other passages still refer to it.
Key takeaways
- The regulated object is the medical examination or disability-related inquiry inside a program, not the program label.
- A program must be reasonably designed to promote health or prevent disease, and collecting data without giving results, follow-up or advice does not meet that standard unless the data is actually used to build a program.
- Voluntary is defined in four parts, including a notice whose required contents are spelled out.
- Paragraph 1630.14(d)(3) is marked reserved in the current text, while the voluntariness definition, paragraph (d)(5) and the interpretive appendix all still refer to its content — both states are printed here, and no incentive figure is asserted.
- An employer may not require an employee to agree to disclosure of medical information, or to waive confidentiality protections, as a condition of participating or earning an incentive.
- The benefit-plan safe harbor for underwriting and classifying risks is expressly made inapplicable to wellness programs, even where they are part of the employer's health plan.
Answer first: the questionnaire is the regulated thing, not the program
A workplace wellness program is not itself a category in the disability rules. What the rules regulate is the medical examination or disability-related inquiry that a program may contain — a health risk assessment, a biometric screening, a questionnaire.
The permission sits in the same regulation that otherwise restricts such inquiries. A covered entity may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site. The statute carries the same permission for voluntary medical examinations, including voluntary medical histories, that are part of an employee health program available to employees at that work site.
Two words in that sentence carry the whole regime, and the regulation defines both of them at length. Voluntary has a four-part definition. Employee health program has a design standard.
The regulation's interpretive appendix describes the range of things it has in mind: a health risk assessment consisting of a medical questionnaire with or without medical examinations to determine risk factors; medical screening for high blood pressure, cholesterol or glucose; classes to help employees stop smoking or lose weight; physical activities such as walking or exercising daily; coaching to help employees meet health goals; and the administration of flu shots.
The appendix also notes the different arrangements these appear in. Many employers offer such programs as part of a group health plan. Others offer them to all employees regardless of whether they are enrolled in a group health plan. And some offer them while sponsoring no group health plan or group health insurance at all.
Reasonably designed to promote health or prevent disease
The regulation refuses to take the label at face value. An employee health program, including any disability-related inquiries or medical examinations that are part of it, must be reasonably designed to promote health or prevent disease.
It then defines that standard positively and negatively. A program satisfies it if it has a reasonable chance of improving the health of, or preventing disease in, participating employees, and it is not overly burdensome, is not a subterfuge for violating the ADA or other laws prohibiting employment discrimination, and is not highly suspect in the method chosen to promote health or prevent disease.
The negative cases are the specific ones. A program consisting of a measurement, test, screening, or collection of health-related information, without providing results, follow-up information, or advice designed to improve the health of participating employees, is not reasonably designed — unless the collected information actually is used to design a program that addresses at least a subset of the conditions identified.
And there is a second disqualifier aimed at the purpose behind the exercise. A program also is not reasonably designed if it exists mainly to shift costs from the covered entity to targeted employees based on their health, or simply to give an employer information to estimate future health care costs.
The appendix adds detail on the burden side: a program is not reasonably designed if it imposes, as a condition of obtaining a reward, an overly burdensome amount of time for participation, requires unreasonably intrusive procedures, or places significant costs related to medical examinations on employees.
The regulation closes with a fact-specific instruction. Whether an employee health program is reasonably designed to promote health or prevent disease is evaluated in light of all the relevant facts and circumstances. The appendix also states the underlying point directly: it is not sufficient for a covered entity merely to claim that its collection of medical information is part of a wellness program.
What voluntary means here, in four parts
The regulation supplies a definition rather than leaving the word to ordinary usage. A program that includes disability-related inquiries or medical examinations — including those that are part of a health risk assessment — is voluntary as long as the covered entity meets four conditions.
First, it does not require employees to participate.
Second, it does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits — and here the text adds a parenthesis, except as allowed under paragraph (d)(3) of this section — for employees who do not participate.
Third, it does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA.
Fourth, it provides employees with a notice. The regulation specifies what the notice must do: be written so that the employee from whom medical information is being obtained is reasonably likely to understand it; describe the type of medical information that will be obtained and the specific purposes for which it will be used; and describe the restrictions on disclosure, the employer representatives or other parties with whom the information will be shared, and the methods the covered entity will use to ensure the information is not improperly disclosed, including whether it complies with the measures set out in the HIPAA regulations.
The appendix restates that fourth condition in the same terms, describing a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, the restrictions on its disclosure, and the methods used to prevent improper disclosure.
The reserved paragraph, and the three places that still point at it
This is where the regulation's current text is worth reading rather than summarizing, because the document does not resolve itself.
Paragraph (d)(3) of § 1630.14 reads, in full, in the text served by the eCFR: [Reserved]. There is nothing else in it. The section's own amendment history ends with an entry at 83 FR 65296, dated December 20, 2018.
Three other passages in the same rulebook still refer to that paragraph as though it contained something.
The voluntariness definition, at paragraph (d)(2)(ii), carves out an exception by cross-reference: a covered entity does not deny coverage or limit the extent of benefits, except as allowed under paragraph (d)(3) of this section, for employees who do not participate.
Paragraph (d)(5) refers to a limit by name. Compliance with the requirements of this paragraph (d), it says, including the limit on incentives under the ADA, does not relieve a covered entity from the obligation to comply in all respects with the nondiscrimination provisions of Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, Title II of the Genetic Information Nondiscrimination Act, or other sections of Title I of the ADA.
And the interpretive appendix goes further still, describing an outcome that depends on the reserved paragraph having content: even though an employer's wellness program might comply with the incentive limits set out in paragraph (d)(3), the employer would violate federal nondiscrimination statutes if that program discriminates on the basis of race, sex, color, religion, national origin, or age.
Both states of the document are printed here because both are in it. The operative paragraph is reserved. Three cross-references to its content remain. This page does not assert what limit, if any, currently applies under this part, and prints no incentive figure or percentage of any kind.
One substantive rule in the same neighborhood is not affected by any of this, and it is worth stating on its own. A covered entity shall not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information — except to the extent permitted by the part to carry out specific activities related to the wellness program — or to waive any confidentiality protections in the part, as a condition for participating in a wellness program or for earning any incentive offered in connection with one.
Where the information goes, and one safe harbor that does not apply
The confidentiality rules for a wellness program follow the same pattern as elsewhere in the part, with one addition that matters more than the rest.
Information obtained under this paragraph regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, with the familiar three exceptions: supervisors and managers may be informed regarding necessary work restrictions and accommodations; first aid and safety personnel may be informed when appropriate if the disability might require emergency treatment; and government officials investigating compliance must be given relevant information on request. The information shall not be used for any purpose inconsistent with the part.
The addition is the aggregation rule. Except as permitted by that exception list, and as is necessary to administer the health plan, information obtained under this paragraph regarding the medical information or history of any individual may only be provided to a covered entity in aggregate terms that do not disclose, or are not reasonably likely to disclose, the identity of any employee.
The appendix reinforces how narrowly the supervisor exception is meant to operate here. Although an exception to confidentiality tracking the statute's language permits disclosure to managers and supervisors in connection with necessary work restrictions or accommodations, such an exception would rarely, if ever, apply to medical information collected as part of a wellness program, and sharing such information could be inconsistent with the definition of an employee health program.
The appendix also flags a separate rulebook. Where a wellness program is part of a group health plan, the individually identifiable health information collected from or created about participants is protected health information under the HIPAA privacy, security and breach notification rules, and certain disclosures otherwise permitted for employee health programs generally may not be permissible under the privacy rule without the individual's written authorization.
Finally, the regulation removes a defense that would otherwise be available. The safe harbor provisions applicable to health insurance, life insurance and other benefit plans do not apply to wellness programs, even if such programs are part of a covered entity's health plan. The appendix explains the significance: that safe harbor permits treating individuals differently based on disability where justified according to accepted principles of risk classification, and it does not apply simply because a covered entity asserts that it used wellness-program information to estimate or try to reduce its risks or health care costs.
What this does and does not settle
This part is one of several rulebooks that can reach the same program at the same time. The regulation says so itself, listing Title VII, the Equal Pay Act, the age discrimination statute, the genetic information statute and other sections of Title I of the ADA as obligations that compliance with this paragraph does not discharge.
The appendix adds a further interaction worth knowing about. If a wellness program requirement — it names a particular blood pressure, glucose level or body mass index as examples — disproportionately affects individuals on the basis of some protected characteristic, an employer may be able to avoid a disparate impact claim by offering and providing a reasonable alternative standard.
There is also a group-health-plan rulebook that governs rewards tied to a health factor, and it is not this one. The appendix in the companion genetic information regulation points to it explicitly, naming the requirement to provide a reasonable alternative or waiver under those rules when it is unreasonably difficult due to a medical condition to satisfy, or medically inadvisable to attempt to satisfy, the otherwise applicable standard. That set of rules is a separate subject and is not developed here.
What this page describes is one rulebook's requirements of an employer: a program that is reasonably designed rather than merely labeled, participation that is voluntary as defined, a notice with named contents, records kept separately, information flowing back to the employer only in aggregate, and no requirement to trade away confidentiality to take part.
It does not tell any reader that a program they were offered fails any of those tests, and it prints no figure for what an employer may offer, because the paragraph that would have carried one is reserved in the current text.
Sources
- 29 CFR 1630.14(d) — Other acceptable examinations and inquiries, with the Interpretive Guidance appendix to Part 1630The permission for voluntary medical examinations and activities, including voluntary medical histories, that are part of an employee health program available at the work site; the reasonably-designed standard and its positive and negative formulations, including the results-and-follow-up requirement and the cost-shifting and cost-estimation disqualifiers, and the facts-and-circumstances instruction; the four-part definition of voluntary including the notice content requirements; that paragraph (d)(3) reads [Reserved]; that paragraph (d)(2)(ii) cross-references paragraph (d)(3) and that paragraph (d)(5) refers to the limit on incentives under the ADA and lists Title VII, the Equal Pay Act, the ADEA, Title II of GINA and other sections of Title I of the ADA; the bar on requiring agreement to sale, exchange, sharing, transfer or other disclosure of medical information or waiver of confidentiality protections as a condition of participation or incentive; the confidentiality requirements, the three exceptions, and the aggregate-terms limit; the provision that the benefit-plan safe harbor does not apply to wellness programs; and, from the interpretive appendix, the list of typical program components, the three arrangements in which programs appear, the statement that merely claiming a collection is part of a wellness program is not sufficient, the burden examples, the restatement of the notice requirement, the observation that the supervisor exception would rarely if ever apply to wellness program information, the HIPAA protected-health-information discussion, the reference to incentive limits set out in paragraph (d)(3), the disparate-impact and reasonable-alternative-standard passage, and the explanation of what the safe harbor permits and why asserting cost estimation does not invoke it.
- 42 U.S.C. 12112(d)(4)(B) — Acceptable examinations and inquiriesThe statutory permission for a covered entity to conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site, and the application of the confidentiality requirements to information obtained under it.
Frequently asked questions
Is a workplace health questionnaire a medical inquiry?
It can be. The regulation treats disability-related inquiries and medical examinations that are part of a health risk assessment as the regulated conduct, and permits them only as voluntary medical examinations and activities, including voluntary medical histories, that are part of an employee health program available to employees at the work site.
What does reasonably designed to promote health or prevent disease mean?
The regulation says a program satisfies the standard if it has a reasonable chance of improving health or preventing disease in participants, is not overly burdensome, is not a subterfuge for violating the ADA or other anti-discrimination laws, and is not highly suspect in its chosen method. It states that collecting information without providing results, follow-up or advice does not qualify unless the information is actually used to design a program addressing at least a subset of the conditions identified, and that a program existing mainly to shift costs to targeted employees based on their health, or simply to let an employer estimate future health care costs, is not reasonably designed.
What makes participation voluntary under this regulation?
Four things: the employer does not require participation; it does not deny group health plan coverage or a benefits package, or limit the extent of benefits, for non-participation, subject to a cross-referenced exception; it does not take adverse action, retaliate, interfere, coerce, intimidate or threaten; and it provides a notice meeting stated content requirements.
What must the notice say?
It must be written so the employee is reasonably likely to understand it, describe the type of medical information that will be obtained and the specific purposes for which it will be used, and describe the restrictions on disclosure, the employer representatives or other parties with whom the information will be shared, and the methods used to ensure the information is not improperly disclosed, including whether those comply with the HIPAA regulations.
Is there a cap on the incentive an employer may offer under this rule?
The paragraph that would carry one, § 1630.14(d)(3), reads [Reserved] in the current text, and the section's amendment history ends with an entry dated December 2018. Three other passages in the same rulebook still cross-reference it — the voluntariness definition, a paragraph referring to the limit on incentives under the ADA, and the interpretive appendix referring to incentive limits set out in paragraph (d)(3). Both states of the document are described here, and no figure is asserted.
Can the employer see individual answers?
The regulation says information obtained under this paragraph may only be provided to the covered entity in aggregate terms that do not disclose, or are not reasonably likely to disclose, the identity of any employee — except as permitted by the confidentiality exception list and as necessary to administer the health plan. It also bars requiring an employee to agree to disclosure of medical information, or to waive confidentiality protections, as a condition of participating or earning an incentive.