Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 21659 

1The citations in this proposed rule are to the 

2011 regulations. In 2011, EEOC issued amended 

regulations to revise the definition of disability and 

other provisions to conform to changes to the ADA 

made by the ADA Amendments Act of 2008, but 

Continued 

Code of Federal Regulations (10 CFR), 

‘‘Emergency core cooling system 

performance during loss-of-coolant 

accidents (LOCA),’’ with respect to the 

effects of debris during long-term 

cooling. 

The voluntary alternative was 

included in the proposed 10 CFR 50.46c 

rule at the direction of the Commission 

in the Staff Requirements Memorandum 

(SRM) regarding SECY–12–0093 

‘‘Closure Options for Generic Safety 

Issue—191, Assessment of Debris 

Accumulation on Pressurized-Water 

Reactor Sump Performance,’’ and in the 

SRM regarding SECY–12–0034 

‘‘Proposed Rulemaking—10 CFR 50.46c: 

Emergency Core Cooling System 

Performance During Loss-of-Coolant 

Accidents (RIN 3150–AH42).’’ This 

guide is intended to provide a 

consistent approach for licensees to use 

when performing a risk assessment of 

the complex phenomena associated 

with debris generation and transport, 

and the resulting effect on long-term 

core cooling. 

III. Backfitting and Issue Finality 

This DG, if finalized, would not 

constitute backfitting as defined in 

§ 50.109 (the Backfit Rule), and would 

not be otherwise inconsistent with the 

issue finality provisions in 10 CFR part 

52, ‘‘Licenses, Certifications and 

Approvals for Nuclear Power Plants.’’ 

The NRC published a proposed revision 

of 10 CFR 50.46c on March 24, 2014 (79 

FR 16106). The proposed rule includes 

the option of allowing an applicant or 

licensee to address the effects of debris 

on longterm cooling with respect to 

ECCS performance requirements in 

§ 50.46c and GDC–35 using a riskinformed approach. The proposed rule 

would also allow applicants and 

licensees who select the option to use 

the same approach in demonstrating 

compliance with GDC–38 and GDC–41. 

This DG provides guidance on one 

possible means for implementing that 

option. The proposed guidance does not 

exceed the scope of the proposed rule. 

Therefore, the backfitting and issue 

finality discussion for the proposed rule 

applies to this DG, and further 

consideration and discussion of 

backfitting and issue finality for the DG 

is not necessary. 

Dated at Rockville, Maryland, this 13th day 

of April 2015. 

For the Nuclear Regulatory Commission. 

Harriet Karagiannis, 

Acting Chief, Regulatory Guidance and 

Generic Issues Branch, Division of 

Engineering, Office of Nuclear Regulatory 

Research. 

[FR Doc. 2015–08964 Filed 4–17–15; 8:45 am] 

BILLING CODE 7590–01–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1630 

RIN 3046–AB01 

Amendments to Regulations Under the 

Americans With Disabilities Act 

AGENCY: Equal Employment 

Opportunity Commission. 

ACTION: Proposed rule. 

SUMMARY: The Equal Employment 

Opportunity Commission (‘‘EEOC’’ or 

‘‘Commission’’) is issuing a proposed 

rule that would amend the regulations 

and interpretive guidance implementing 

Title I of the Americans with 

Disabilities Act (ADA) as they relate to 

employer wellness programs. The 

proposed rule amends the ADA 

regulations to provide guidance on the 

extent to which employers may use 

incentives to encourage employees to 

participate in wellness programs that 

include disability-related inquiries and/ 

or medical examinations. 

DATES: Comments regarding this 

proposal must be received by the 

Commission on or before June 19, 2015. 

Please see the sections below entitled 

ADDRESSES and SUPPLEMENTARY

INFORMATION for additional information 

on submitting comments. 

ADDRESSES: You may submit comments, 

identified by RIN number 3046–AB01, 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 663–4114. (There is no 

toll free FAX number). Only comments 

of six or fewer pages will be accepted 

via FAX transmittal, in order to assure 

access to the equipment. Receipt of FAX 

transmittals will not be acknowledged, 

except that the sender may request 

confirmation of receipt by calling the 

Executive Secretariat staff at (202) 663– 

4070 (voice) or (202) 663–4074 (TTY). 

(These are not toll free numbers). 

• Mail: Bernadette B. Wilson, Acting 

Executive Officer, Executive Secretariat, 

Equal Employment Opportunity 

Commission, U.S. Equal Employment 

Opportunity Commission, 131 M Street 

NE., Washington, DC 20507. 

• Hand Delivery/Courier: Bernadette 

Wilson, Acting Executive Officer, 

Executive Secretariat, Equal 

Employment Opportunity Commission, 

U.S. Equal Employment Opportunity 

Commission, 131 M Street NE., 

Washington, DC 20507. 

Instructions: The Commission invites 

comments from all interested parties. 

All comment submissions must include 

the agency name and docket number or 

the Regulatory Information Number 

(RIN) for this rulemaking. Comments 

need be submitted in only one of the 

above-listed formats. All comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information you provide. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov. Copies of the 

received comments also will be 

available for review at the Commission’s 

library, 131 M Street NE., Suite 

4NW08R, Washington, DC 20507, 

between the hours of 9:30 a.m. and 5:00 

p.m., from June 19, 2015 until the 

Commission publishes the rule in final 

form. 

FOR FURTHER INFORMATION CONTACT: 

Christopher J. Kuczynski, Assistant 

Legal Counsel, (202) 663–4665, or Joyce 

Walker-Jones, Senior Attorney Advisor, 

at (202) 663–7031, or (202) 663–7026 

(TTY), Office of Legal Counsel, U.S. 

Equal Employment Opportunity 

Commission. (These are not toll free 

numbers.) Requests for this notice in an 

alternative format should be made to the 

Office of Communications and 

Legislative Affairs at (202) 663–4191 

(voice) or (202) 663–4494 (TTY). (These 

are not toll free numbers.) 

SUPPLEMENTARY INFORMATION: 

Introduction 

The Equal Employment Opportunity 

Commission (‘‘EEOC’’ or 

‘‘Commission’’) is issuing a proposed 

rule that would amend the regulations 

and interpretive guidance implementing 

Title I of the Americans with 

Disabilities Act (ADA) as they relate to 

employer wellness programs. Congress 

enacted the ADA in 1990 to prohibit 

discrimination against individuals with 

disabilities. The EEOC issued 

implementing regulations in 1991 to 

provide additional guidance on the 

law’s requirements and prohibited 

practices with respect to employment.1

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21660 Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 

did not amend the provisions concerning disabilityrelated inquiries and medical examinations of 

employees at 29 CFR 1630.14 that affect employee 

health programs. Some of the other revisions, 

however, resulted in renumbering. 

2The ADA provides that, ‘‘[a] covered entity may 

conduct voluntary medical examinations and 

inquiries, including voluntary medical histories, 

which are part of an employee health program 

available to employees at that work site.’’ 42 U.S.C. 

12112(d)(4)(B)(emphasis added). As referenced in 

this proposed rule, wellness programs are 

‘‘employee health programs.’’ 

3This proposed rule also does not address the 

extent to which Title II of the Genetic Information 

Nondiscrimination Act (GINA) of 2008, 42 U.S.C. 

2000ff, et seq., affects an employer’s ability to 

condition incentives on a family member’s 

participation in a wellness program. This issue will 

be addressed in future EEOC rulemaking. 

4The term ‘‘group health plan’’ is defined in 

ERISA section 733(a). An employer may establish 

or maintain more than one group health plan. 

5This proposed rule asks for comments on 

whether employers offer (or are likely to offer in the 

future) wellness programs outside of a group health 

plan or group health insurance coverage that use 

incentives to promote participation in such 

programs or to encourage employees to achieve 

certain health outcomes and whether EEOC should 

issue regulations specifically limiting incentives 

provided as part of such programs. 

6See Rand Health, Workplace Wellness Programs 

Study Final Report (2013), sponsored by the U.S. 

Departments of Labor and Health and Human 

Services, available at http://www.rand.org/content/ 

dam/rand/pubs/research_reports/RR200/RR254/

RAND_RR254.pdf [hereinafter referred to as the 

RAND Final Report]; see also The Kaiser Family 

Foundation and Health Research & Educational 

Trust 2014 Employer Health Benefits Survey, 

available at http://kff.org/health-costs/report/2014- 

employer-health-benefits-survey/ [hereinafter 

referred to as the Kaiser Survey]. 

7 Id. 

8According to the RAND Final Report, 69 percent 

of employers with at least 50 employees offer 

financial incentives to encourage employee 

participation, while 10 percent offer incentives tied 

to health outcomes. By contrast, the Kaiser Survey 

found that 36 percent of large employers with 200 

or more employees and 18 percent of smaller 

employers offer financial incentives to participate 

in a wellness program. 

9According to the Kaiser Survey, 68 percent of all 

large firms that offered an incentive for the 

completion of a wellness program used a maximum 

incentive below $500. 

10 42 U.S.C. 12101 et seq. 

11See Title VII of the Civil Rights Act of 1964, 

42 U.S.C. 2000e et seq.; the Equal Pay Act of 1963, 

29 U.S.C. 206(d); the Age Discrimination in 

Employment Act (ADEA) of 1967, 29 U.S.C. 621 et 

seq.; and Title II of GINA. However, this proposed 

rule concerns only the application of the ADA’s 

rules limiting disability-related inquiries and 

medical examinations of employees to employersponsored wellness programs. Compliance with the 

limits on incentives in this proposed rule does not 

necessarily result in compliance with other 

nondiscrimination laws or other parts of the ADA. 

For example, as the interpretive guidance 

accompanying the proposed rule explains, even if 

an employer’s wellness program complies with the 

incentive limits set forth in the ADA regulations, 

the employer violates Title VII or the ADEA if that 

program discriminates on the basis of race, sex, 

national origin, or age. 

12The Patient Protection and Affordable Care Act, 

Public Law 111–148, and the Health Care and 

Education Reconciliation Act, Pub. L. 111–152, are 

known collectively as the Affordable Care Act. 

Section 1201 of the Affordable Care Act amended 

and moved the nondiscrimination and wellness 

provisions of the Public Health Service (PHS) Act 

from section 2702 to section 2705, and extended the 

nondiscrimination provisions to the individual 

market. The Affordable Care Act also added section 

715(a)(1) to ERISA and section 9815(a)(1) to the 

Code to incorporate the provisions of part A of title 

XXVII of the PHS Act, including PHS Act section 

2705, into ERISA and the Code and make them 

applicable to group health plans and group health 

insurance issuers. 

13A wellness program that is part of a group 

health plan also must comply with HIPAA’s 

Privacy, Security, and Breach Notification 

requirements set forth at 45 CFR part 160 and part 

164. These requirements are discussed later in this 

preamble. 

14The HIPAA nondiscrimination provisions set 

forth eight health status-related factors, which the 

December 13, 2006 final regulations refer to as 

This proposed rule provides guidance 

on the extent to which the ADA permits 

employers to offer incentives to 

employees to promote participation in 

wellness programs that are employee 

health programs.2 It does not apply to 

similar types of programs that may be 

provided by entities other than those 

subject to Title I of the ADA, such as 

social service agencies covered under 

Title II of the ADA, 42 U.S.C. 12131 et 

seq., or places of public accommodation 

subject to Title III of the ADA, 42 U.S.C. 

12181 et seq., who may provide similar 

programs to individuals who are 

considered volunteers.3

A wellness program may be part of a 

group health plan or may be offered 

outside of a group health plan.4 The 

references in the proposed rule 

regarding the requirement to provide a 

notice and the use of incentives, and 

changes to the corresponding section of 

the interpretive guidance, apply only to 

wellness programs that are part of or 

provided by a group health plan or by 

a health insurance issuer offering group 

health insurance in connection with a 

group health plan.5 The term ‘‘group 

health plan’’ includes both insured and 

self-insured group health plans and is 

used interchangeably with the term 

‘‘health plan’’ throughout the preamble. 

All of the other proposed changes to the 

regulations apply to all ‘‘health 

programs,’’ which include wellness 

programs whether or not they are 

offered as part of or outside of a group 

health plan or group health insurance 

coverage. The term ‘‘incentives’’ 

includes both financial and in-kind 

incentives, such as time-off awards, 

prizes, or other items of value. 

Discussion 

As a means of attempting to improve 

employees’ health and reduce health 

care costs, many employers that provide 

health coverage also offer employee 

health programs and activities to 

promote healthier lifestyles or prevent 

disease.6 Commonly referred to as 

workplace wellness programs, these 

programs may include, for example: 

nutrition classes, onsite exercise 

facilities, weight loss and smoking 

cessation programs, and/or coaching to 

help employees meet health goals. 

Wellness programs also may incorporate 

health risk assessments and biometric 

screenings that measure an employee’s 

health risk factors, such as body weight 

and cholesterol, blood glucose, and 

blood pressure levels.7 Some employers 

offer incentives to encourage employees 

simply to participate in a wellness 

program, while others offer incentives 

based on whether employees achieve 

certain health outcomes.8 Incentives can 

be framed as rewards or penalties and 

often take the form of prizes, cash, or a 

reduction or increase in health care 

premiums or cost sharing. Of the 

employers who offer incentives to 

complete wellness programs, the 

majority use incentives totaling less 

than $500 per year.9

Employee health programs offered by 

employers must comply with laws 

enforced by the EEOC, including Title I 

of the Americans with Disabilities Act 

(ADA) which restricts the medical 

information employers may obtain from 

applicants and employees and makes it 

illegal to discriminate against 

individuals based on disability.10 They 

also must comply with other laws EEOC 

enforces that prohibit discrimination 

based on race, color, sex (including 

pregnancy), national origin, religion, 

compensation, age, or genetic 

information.11 Additionally, wellness 

programs that are part of group health 

plans must comply with the 

requirements of the Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA), as amended by the 

Patient Protection and Affordable Care 

Act (‘‘Affordable Care Act’’)12—set forth 

in regulations jointly issued by the 

Department of Labor (DOL), Department 

of the Treasury, and Department of 

Health and Human Services (HHS)— 

that generally prohibit discrimination in 

group health plans based on any health 

factor.13

The laws relevant to this proposed 

rule are discussed below. 

HIPAA’s Nondiscrimination Provisions 

HIPAA’s nondiscrimination 

provisions, as amended by the 

Affordable Care Act, generally prohibit 

group health plans and health insurance 

issuers offering group health insurance 

in connection with a group health plan 

from discriminating against participants 

and beneficiaries in premiums, benefits, 

or eligibility based on a health factor.14

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Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 21661 

‘‘health factors.’’ Under HIPAA and the 2006 

regulations, as well as under the Public Health 

Service (PHS) Act section 2705 (as added by the 

Affordable Care Act), the eight health factors are 

health status, medical condition (including both 

physical and mental illnesses), claims experience, 

receipt of health care, medical history, genetic 

information, evidence of insurability (including 

conditions arising out of acts of domestic violence), 

and disability. 71 FR 75014 (Dec. 13, 2006). In the 

view of the Departments of Labor, HHS, and the 

Treasury, ‘‘[t]hese terms are largely overlapping 

and, in combination, include any factor related to 

an individual’s health.’’ 66 FR 1379 (January 8, 

2001). 

15Prior to the enactment of the Affordable Care 

Act, HIPAA added section 9802 of the Internal 

Revenue Code, section 702 of the Employee 

Retirement Income Security Act (ERISA), and 

section 2702 of the PHS Act. DOL, Treasury, and 

HHS issued joint final regulations in 2006 regarding 

wellness programs in connection with a group 

health plan or group health insurance coverage 

under which any of the conditions for obtaining a 

reward is based on satisfying a standard related to 

a health factor. See 26 CFR 54.9802–1(f); 29 CFR 

2590.702(f); 45 CFR 146.121(f). Paragraph (f)(2) of 

the 2006 regulations limited the total reward for 

such wellness programs to 20 percent of the total 

cost of coverage under the plan. The Affordable 

Care Act amended the PHS Act to raise the 

limitation on incentives to 30 percent of the total 

cost of coverage under the plan. See PHS Act 

section 2705(j)(3)(A). The DOL, IRS, and HHS 

issued final regulations in June 2013 to implement 

PHS Act section 2705 and amend the 2006 HIPAA 

regulations regarding nondiscriminatory wellness 

programs in group health coverage. 78 FR 33158 

(June 3, 2013). Under the 2013 final regulations on 

nondiscriminatory wellness programs, references to 

‘‘a plan providing a reward include both providing 

a reward (such as a discount or rebate of a premium 

or contribution, a waiver of all or part of a costsharing mechanism, an additional benefit, or any 

financial or other incentive) and imposing a penalty 

(such as a surcharge or other financial or 

nonfinancial disincentive).’’ 

16For the requirements applicable to activity-only 

programs, see 26 CFR 54.9802–1(f)(3), 29 CFR 

2590.702(f)(3), and 45 CFR 146.121(f)(3). For 

requirements applicable to outcome-based 

programs, see 26 CFR 54.9802–1(f)(4), 29 CFR 

2590.702(f)(4), and 45 CFR 146.121(f)(4). 

17See 78 FR at 33168 (‘‘The Departments 

recognize that many other laws may regulate plans 

and issuers in their provision of benefits to 

participants and beneficiaries. These laws include, 

but are not limited to, the ADA, Title VII of the 

Civil Rights Act of 1964, Code section 105(h) and 

PHS Act section 2716 (prohibiting discrimination in 

favor of highly compensated individuals), the 

Genetic Information Nondiscrimination Act of 

2008, the Family and Medical Leave Act, ERISA’s 

fiduciary provisions, and State law.’’). 

18See 42 U.S.C. 12112(a) and 29 CFR 

1630.4(a)(1)(vi). Title I of the ADA applies to 

individuals and covered entities other than 

employees and employers, including employment 

agencies, labor organizations, and joint-labor 

management committees. See 42 U.S.C. 12111(2), 

12111(4), 12111(5), and 12112(b) (describing the 

prohibited practices of each of these entities); see 

also 29 CFR 1630.2(b) (definition of covered entity) 

and 29 CFR 1630.4(a)(1) (description of prohibited 

practices). Although employers generally will be 

the ADA covered entities that offer wellness 

programs, this preamble, the proposed rule, and the 

interpretive guidance accompanying the proposed 

rule frequently use the term ‘‘covered entity,’’ as 

that term appears throughout EEOC’s entire ADA 

Continued 

An exception to the general rule allows 

premium discounts or rebates or 

modification to otherwise applicable 

cost sharing (including copayments, 

deductibles, or coinsurance) in return 

for adherence to certain programs of 

health promotion and disease 

prevention.15

HIPAA’s nondiscrimination 

provisions, as amended by the 

Affordable Care Act, and the 2013 final 

regulations issued by the Departments 

of Labor, Treasury, and HHS, discuss 

two types of wellness programs: 

Participatory and health-contingent. 

Participatory wellness programs either 

do not provide a reward or do not 

include any conditions for obtaining a 

reward that are based on an individual 

satisfying a standard related to a health 

factor. Examples in the final regulations 

include: A program that reimburses 

employees for all or part of the cost for 

membership in a fitness center; a 

program that reimburses employees for 

the costs of participating, or that 

otherwise provides a reward for 

participating, in a smoking cessation 

program without regard to whether the 

employee quits smoking; and a program 

that provides a reward to employees 

who complete a health risk assessment 

(HRA) regarding current health status, 

without any further action (educational 

or otherwise) required by the employee 

with regard to the health issues 

identified as part of the assessment. The 

2013 final regulations state that 

participatory wellness programs are 

permissible under the HIPAA 

nondiscrimination requirements 

provided they are made available to all 

similarly situated individuals. 

Health-contingent wellness programs, 

which may be either activity-only or 

outcome-based, require individuals to 

satisfy a standard related to a health 

factor to obtain a reward (or require an 

individual to undertake more than a 

similarly situated individual based on a 

health factor in order to obtain the same 

reward). Activity-only programs require 

individuals to perform or complete an 

activity related to a health factor in 

order to obtain a reward, but do not 

require an individual to attain or 

maintain a specific health outcome. 

Outcome-based programs require 

individuals to attain or maintain a 

specific health outcome (such as not 

smoking or attaining certain results on 

biometric screenings) in order to obtain 

a reward. 

There are five requirements for 

health-contingent wellness programs 

under the Public Health Service (PHS) 

Act section 2705 and the 2013 final 

regulations.16 First, all individuals 

eligible for a health-contingent wellness 

program must be given the opportunity 

to qualify for the reward at least once 

per year. Second, the total reward 

offered to an individual under all 

health-contingent wellness programs 

with respect to a plan cannot exceed 30 

percent of the total cost of employeeonly coverage under the plan, including 

both employee and employer 

contributions towards the cost of 

coverage (or 50 percent to the extent 

that the additional percentage is 

attributed to tobacco prevention or 

reduction). Third, health-contingent 

wellness programs must be reasonably 

designed to promote health or prevent 

disease. Fourth, the full reward under a 

health-contingent wellness program 

must be available to all similarly 

situated individuals. For this purpose, 

an activity-only program must allow a 

reasonable alternative standard (or 

waiver of the otherwise applicable 

standard) for obtaining the reward for 

any individual for whom, for that 

period, it is unreasonably difficult due 

to a medical condition to satisfy the 

otherwise applicable standard, and for 

any individual for whom, for that 

period, it is medically inadvisable to 

attempt to satisfy the otherwise 

applicable standard. An outcome-based 

program must allow a reasonable 

alternative standard (or waiver of the 

otherwise applicable standard) for 

obtaining the reward to any individual 

who does not meet the initial standard 

based on a measurement, test, or 

screening. Fifth, plans and issuers must 

disclose the availability of a reasonable 

alternative standard to qualify for the 

reward in all plan materials describing 

the terms of a health-contingent 

wellness program and in any disclosure 

that an individual did not satisfy an 

initial outcome-based standard. 

The 2013 final regulations recognize 

that compliance with HIPAA 

nondiscrimination rules (as amended by 

the Affordable Care Act), including the 

wellness program requirements, is not 

determinative of compliance with any 

other provision of any other state or 

federal law, including, but not limited 

to, the ADA, Title VII of the Civil Rights 

Act of 1964 (Title VII), and the Genetic 

Information Nondiscrimination Act 

(GINA).17

Title I of the ADA 

Title I of the ADA prohibits 

discrimination against individuals on 

the basis of disability ‘‘in regard to . . . 

employment compensation . . . and 

other terms, conditions, and privileges 

of employment,’’ including ‘‘fringe 

benefits available by virtue of 

employment, whether or not 

administered by the covered entity.’’ 18

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21662 Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 

regulation. The term ‘‘covered entity’’ also has a 

different meaning for purposes of the HIPAA 

Privacy, Security, and Breach Notification Rules, as 

explained later in this preamble. The proposed rule 

uses the term ‘‘HIPAA covered entity’’ when 

discussing HIPAA privacy requirements that apply 

to the group health plan. 

19 42 U.S.C. 12112(b)(5)(A) and 29 CFR 1630.9 

(prohibiting covered entity from failing to provide 

reasonable accommodations absent undue 

hardship); 29 CFR 1630.2(o)(1)(iii) (reasonable 

accommodation includes modifications and 

adjustments that enable a covered entity’s 

employees to enjoy ‘‘equal benefits and privileges 

of employment.’’) 

20 42 U.S.C. 12112(d)(4)(A) (a covered entity 

‘‘shall not require a medical examination and shall 

not make inquiries of an employee as to whether 

such employee is an individual with a disability or 

as to the nature or severity of the disability, unless 

such examination or inquiry is shown to be jobrelated and consistent with business necessity.’’). 

EEOC refers to the types of inquiries prohibited by 

the ADA as ‘‘disability-related inquiries’’ and has 

issued guidance on what constitutes such an 

inquiry. See Enforcement Guidance on DisabilityRelated Inquiries and Medical Examinations of 

Employees Under the Americans with Disabilities 

Act, Q&A 1 (July 27, 2000), available at http://

www.eeoc.gov/policy/docs/guidance-inquiries.html 

(hereafter ‘‘Guidance’’). 

21 42 U.S.C. 12112(d)(4)(B). 

22See Guidance, at Q&A 22. 

23See 78 FR at 33168 (noting that HIPAA 

compliance is not determinative of ADA 

compliance); see also PHS Act section 2705(j)(3)(A) 

(noting that wellness programs complying with the 

HIPAA requirements ‘‘shall not violate this section’’ 

of the Act). 

24The Commission does not believe that the 

ADA’s ‘‘safe harbor’’ provision applicable to 

insurance, as interpreted by the court in Seff v. 

Broward County, 778 F. Supp. 2d 1370 (S.D. Fla. 

2011), affirmed, 691 F.3d 1221 (11th Cir. 2012), is 

the proper basis for finding wellness program 

incentives permissible. The ADA contains a clear 

‘‘safe harbor’’ for wellness programs—the 

‘‘voluntary’’ provision at 42 U.S.C. 12112(d)(4)(B). 

See H.R. Rep. 101–485, pt. 2, at 51 (‘‘A growing 

number of employers today are offering voluntary 

wellness programs in the workplace. These 

programs often include medical screening for high 

blood pressure, weight control, cancer detection, 

and the like. As long as the programs are voluntary 

and the medical records are maintained in a 

confidential manner and not used for the purpose 

of limiting health insurance eligibility or of 

preventing occupational advancement, these 

activities would fall within the purview of accepted 

activities.’’). Reading the insurance safe harbor as 

exempting these programs from coverage would 

render the ‘‘voluntary’’ provision superfluous. 

25See id. at H.R. Rep. 101–485, pt. 2, at 51. 26 71 FR 75014, 75018 (December 13, 2006). 

The ADA also requires employers to 

provide reasonable accommodations 

(modifications or adjustments) to enable 

individuals with disabilities to have 

equal access to the fringe benefits 

offered to individuals without 

disabilities.19 Additionally, the ADA 

restricts employers from obtaining 

medical information from employees by 

generally prohibiting them from making 

disability-related inquiries or requiring 

medical examinations.20 The statute, 

however, provides an exception to this 

rule by stating that ‘‘[a] covered entity 

may conduct voluntary medical 

examinations, including voluntary 

medical histories, which are part of an 

employee health program available to 

employees at that work site.’’ 21

Employee health programs include 

workplace wellness programs. In 

previous guidance on disability-related 

inquiries and medical examinations 

under the ADA, EEOC stated that: ‘‘A 

wellness program is ‘voluntary’ as long 

as an employer neither requires 

participation nor penalizes employees 

who do not participate.’’ 22 However, 

neither the statute nor EEOC’s 

regulations address the extent to which 

incentives might affect the voluntary 

nature of a wellness program. 

The Interaction of Title I of the ADA 

and HIPAA’s Nondiscrimination 

Provisions, as Amended by the 

Affordable Care Act 

The Commission’s interpretation of 

the term ‘‘voluntary’’ in the ADA’s 

disability-related inquiries and medical 

examinations provision is central to the 

interaction between the ADA and 

HIPAA’s wellness program provisions, 

as amended by the Affordable Care Act. 

A plausible reading of ‘‘voluntary’’ in 

isolation is that covered entities can 

only offer de minimis rewards or 

penalties to employees for their 

participation (or nonparticipation) in 

wellness programs that include 

disability-related inquiries and medical 

examinations. That reading, however, 

would make many wellness program 

incentives tied to the disclosure of 

health information or the completion of 

medical examinations expressly 

permitted by HIPAA impermissible 

under the ADA. Although it is clear that 

compliance with the standards in 

HIPAA is not determinative of 

compliance with the ADA,23 the 

Commission believes that it has a 

responsibility to interpret the ADA in a 

manner that reflects both the ADA’s goal 

of limiting employer access to medical 

information and HIPAA’s and the 

Affordable Care Act’s provisions 

promoting wellness programs. 

Accordingly, the Commission 

concludes that allowing certain 

incentives related to wellness programs, 

while limiting them to prevent 

economic coercion that could render 

provision of medical information 

involuntary, is the best way to effectuate 

the purposes of the wellness program 

provisions of both laws.24 One purpose 

of the ADA’s provision applicable to 

employee health programs is to allow 

such programs access to medical 

information where employees 

voluntarily provide that information.25

One purpose of HIPAA’s 

nondiscrimination provisions governing 

wellness programs is to ensure that 

wellness programs do not offer 

incentives so large as to have the effect 

of denying coverage or creating too 

heavy a financial penalty for individuals 

who do not meet certain health 

standards.26 HIPAA’s 

nondiscrimination provisions governing 

wellness programs, however, do not 

include provisions like those in the 

ADA that limit the kinds of medical 

information employers may ask 

employees to provide through 

disability-related inquiries or medical 

examinations. 

The proposed rule explains what an 

employee health program is, what it 

means for an employee health program 

to be voluntary, what incentives 

employers may offer as part of a 

voluntary employee health program, 

and what requirements apply 

concerning notice and confidentiality of 

medical information obtained as part of 

voluntary employee health programs. In 

addition, the proposed rule explains 

that compliance with rules concerning 

voluntary employee health programs 

does not ensure compliance with all the 

antidiscrimination laws EEOC enforces. 

The proposed rule clarifies that an 

employer may offer limited incentives 

up to a maximum of 30 percent of the 

total cost of employee-only coverage, 

whether in the form of a reward or 

penalty, to promote an employee’s 

participation in a wellness program that 

includes disability-related inquiries or 

medical examinations as long as 

participation is voluntary. As noted 

below, EEOC seeks comment on 

whether additional protections for lowincome employees are needed. 

Voluntary means that a covered entity: 

(1) Does not require employees to 

participate; (2) 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 such coverage 

(except pursuant to allowed incentives); 

and (3) 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, at 42 U.S.C. 

12203. 

Further, to ensure that participation 

in a wellness program that includes 

disability-related inquiries and/or 

medical examinations, and that is part 

of a group health plan, is truly 

voluntary, an employer must provide a 

notice that clearly explains what 

medical information will be obtained, 

who will receive the medical 

information, how the medical 

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27See 26 CFR 54.9802–1(f)(3)(iii); 29 CFR 

2590.702(f)(3)(iii); 45 CFR 146.121(f)(iii). 

28The interpretive guidance accompanying the 

proposed rule as well as question 6 below address 

the application of incentives related to smoking 

cessation programs. 

information will be used, the 

restrictions on its disclosure, and the 

methods the covered entity will employ 

to prevent improper disclosure of the 

medical information. Finally, the 

proposed rule allows the disclosure of 

medical information obtained by 

wellness programs to employers only in 

aggregate form, except as needed to 

administer the health plan. The 

proposed rule does not implicate 

disability-related inquiries or medical 

examinations outside the context of a 

voluntary wellness program. 

Summary of Proposed Revisions 

The proposed rule re-asserts the 

Commission’s position, based on the 

language of the ADA, that employee 

health programs that include disabilityrelated inquiries or medical 

examinations (including inquiries or 

medical examinations that are part of a 

HRA or medical history) must be 

voluntary and clarifies the application 

of that rule in light of the amendments 

made to HIPAA by the Affordable Care 

Act. 

Proposed section 1630.14(d)(1) says 

that an employee health program, 

including any disability-related 

inquiries and medical examinations that 

are part of such a program, must be 

reasonably designed to promote health 

or prevent disease. This standard is 

similar to the standard under the triagency regulations applicable to healthcontingent wellness programs.27 In 

order to meet the standard, the program 

must have a reasonable chance of 

improving the health of, or preventing 

disease in, participating employees, and 

must not be overly burdensome, a 

subterfuge for violating the ADA or 

other laws prohibiting employment 

discrimination, or highly suspect in the 

method chosen to promote health or 

prevent disease. The interpretive 

guidance offers examples of programs 

that would and would not meet this 

standard. 

Section 1630.14(d)(2)(i)–(iii) explains 

that, for a program to be considered 

voluntary, a covered entity may not 

require an employee to participate in 

such a program and may not deny 

coverage under any of its group health 

plans or particular benefits packages 

within a group health plan, generally 

may not limit the extent of such 

coverage, and may not take any other 

adverse action against employees who 

refuse to participate in an employee 

health program or fail to achieve certain 

health outcomes. Additionally, an 

employer may not retaliate against, 

interfere with, coerce, intimidate, or 

threaten employees in violation of 

Section 503 of the ADA, at 42 U.S.C. 

12203 (e.g., by coercing an employee to 

participate in an employee health 

program or threatening to discipline an 

employee who does not participate). 

Section 1630.14(d)(2)(iv) says that for 

an employee’s participation in a 

wellness program that is part of a group 

health plan to be deemed voluntary, a 

covered entity must provide a notice 

clearly explaining what medical 

information will be obtained, how the 

medical information will be used, who 

will receive the medical information, 

the restrictions on its disclosure, and 

the methods the covered entity uses to 

prevent improper disclosure of medical 

information. 

Section 1630.14(d)(3) clarifies that the 

offer of limited incentives to participate 

in wellness programs that are part of a 

group health plan and that include 

disability-related inquiries and/or 

medical examinations, will not render 

the program involuntary. However, the 

total allowable incentive available 

under all programs (both participatory 

programs and health-contingent 

programs) may not exceed 30 percent of 

the total cost of employee-only 

coverage, which generally is the 

maximum allowable incentive available 

under HIPAA and the Affordable Care 

Act for health-contingent wellness 

programs.28

The EEOC proposes to extend the 30 

percent limit set under HIPAA and the 

Affordable Care Act to include 

participatory wellness programs that ask 

an employee to respond to a disabilityrelated inquiry or undergo a medical 

examination. HIPAA and Affordable 

Care Act wellness program provisions 

are limited to regulating what 

constitutes discrimination based on a 

health factor. As long as an incentive for 

a participatory wellness program is 

available to all similarly situated 

employees, regardless of any health 

factor, the incentive will not violate 

HIPAA and the Affordable Care Act. By 

contrast, the ADA rules concerning 

disability-related inquiries and medical 

examinations of employees limit the 

circumstances under which employers 

may obtain medical information from 

employees and the type of information 

that may be sought. For this reason, 

EEOC has determined that placing 

limits on the rewards employers may 

offer for employee participation (or 

penalties for non-participation) where 

participation requires employees to 

answer disability-related inquiries or 

take medical examinations promotes the 

ADA’s interest in ensuring that 

incentive limits are not so high as to 

make participation in the program 

involuntary. At the same time, these 

limits comport with HIPAA and the 

Affordable Care Act wellness program 

provisions. 

The EEOC has not changed any of the 

exceptions to confidentiality set out in 

section 1630.14(d). The Commission, 

however, proposes to add a new 

subsection, 1630.14(d)(6), concerning 

the confidentiality and use of medical 

information gathered in the course of 

providing voluntary health services to 

employees, including information 

collected as part of an employee’s 

participation in an employee health 

program. This subsection states that 

medical information collected through 

an employee health program only may 

be provided to a covered entity under 

the ADA in aggregate terms that do not 

disclose, or are not reasonably likely to 

disclose, the identity of specific 

individuals, except as needed to 

administer the health plan and except as 

permitted under 1630.14(d)(4). The 

interpretive guidance explains that both 

employers that sponsor wellness 

programs and administrators of wellness 

programs acting as agents of employers 

have obligations to ensure compliance 

with this provision. 

Further, the interpretive guidance 

explains that where a wellness program 

is part of a group health plan, the 

individually identifiable health 

information collected from or created 

about participants as part of the 

wellness program is protected health 

information under the HIPAA Privacy, 

Security, and Breach Notification Rules. 

See 45 CFR part 160 and Part 164. The 

HIPAA Privacy, Security, and Breach 

Notification Rules apply to HIPAA 

covered entities, which include group 

health plans, and generally protect the 

individually identifiable health 

information maintained by or on behalf 

of such entities. Accordingly, the 

interpretative guidance provides that 

where a wellness program is part of a 

group health plan and required to 

comply with HIPAA, its obligation to 

comply with section 1630.14(d)(6) 

generally may be satisfied by adhering 

to the HIPAA Privacy Rule. Thus, when 

an employer that is a health plan 

sponsor performing plan administration 

receives individually identifiable health 

information from or on behalf of the 

group health plan, as permitted by 

HIPAA, it generally satisfies its 

requirement to comply with section 

1630.14(d)(6) by certifying to the group 

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29Additionally, as discussed earlier in this 

preamble, the regulations under HIPAA and the 

Affordable Care Act require that an activity-only 

program allow a reasonable alternative standard (or 

waiver of the otherwise applicable standard) for 

obtaining the reward for any individual for whom, 

for that period, it is unreasonably difficult due to 

a medical condition to satisfy the otherwise 

applicable standard, or for whom it is medically 

inadvisable to attempt to satisfy the otherwise 

applicable standard. Similarly, an outcome-based 

program must allow a reasonable alternative 

standard (or waiver of the otherwise applicable 

standard) for obtaining the reward to any individual 

who does not meet the initial standard based on a 

measurement, test, or screening. 

health plan, as provided by 45 CFR 

164.504(f)(2)(ii), that it will not use or 

disclose the information for purposes 

not permitted by its group health plan 

documents and the HIPAA Privacy Rule 

and abiding by that certification. If an 

employer is not performing plan 

administration on behalf of the group 

health plan, then the aggregate 

information that the employer may 

receive from the wellness program 

under section 1630.14(d)(6) must be deidentified in accordance with the 

HIPAA Privacy Rule. Further, other 

disclosures of protected health 

information from the wellness program 

may only be made in accordance with 

the Privacy Rule. Thus, certain 

disclosures that are otherwise permitted 

under 1630.14(d)(4) for employee health 

programs generally may not be 

permissible under the Privacy Rule for 

wellness programs that are part of a 

group health plan without the written 

authorization of the individual. 

Section 1630.14(d)(7) clarifies that 

compliance with paragraph (d) of this 

section, including the proposed limit on 

incentives under the ADA, does not 

relieve a covered entity of its obligation 

to comply with other employment 

nondiscrimination laws. Thus, for 

example, as the interpretive guidance 

accompanying the proposed rule 

explains, even if an employer’s wellness 

program complies with the incentive 

limits set forth in the ADA regulations, 

the employer would violate Title VII or 

the Age Discrimination in Employment 

Act (ADEA) if that program 

discriminates on the basis of race, sex, 

national origin, or age, or any other 

grounds prohibited by those statutes. 

Employee health programs that do not 

include disability-related inquiries or 

medical examinations, such as those 

that provide employees with general 

health information and education 

programs are not subject to the incentive 

rules discussed here. Like other benefit 

programs offered by covered entities, 

however, these programs must not 

discriminate against employees with 

disabilities. This nondiscrimination 

requirement includes providing 

reasonable accommodations that enable 

employees with disabilities to fully 

participate in employee health programs 

and earn any reward or avoid any 

penalty offered as part of those 

programs.29

This revision will require 

renumbering 29 CFR 1630.14(d). 

The Commission invites written 

comments from members of the public 

on any issues related to this proposed 

rule, including general comments about 

wellness programs or about particular 

practices that might violate the ADA or 

other laws enforced by the EEOC. In 

addition, the Commission specifically 

requests comments on several issues: 

(1) Whether the way in which the 

Commission reconciles the ADA’s 

‘‘voluntary’’ requirement with the 

wellness program provisions in the 

Affordable Care Act is appropriate given 

the intent behind both provisions. 

Specifically, the Commission seeks 

comment on: 

(a) Whether to be ‘‘voluntary’’ under 

the ADA, entities that offer incentives to 

encourage employees to disclose 

medical information must also offer 

similar incentives to persons who 

choose not to disclose such information, 

but who instead provide certification 

from a medical professional stating that 

the employee is under the care of a 

physician and that any medical risks 

identified by that physician are under 

active treatment. 

(b) Whether to be considered 

‘‘voluntary’’ under the ADA, the 

incentives provided in a wellness 

program that asks employees to respond 

to disability-related inquiries and/or 

undergo medical examinations may not 

be so large as to render health insurance 

coverage unaffordable under the 

Affordable Care Act and therefore in 

effect coercive for an employee. 

Specifically, the Commission seeks 

input on whether it would be 

appropriate for the Commission to 

provide that the incentives employers 

offer to employees to promote 

participation in wellness programs must 

not render the cost of health insurance 

unaffordable to employees within the 

meaning of 26 U.S.C. 36B (c)(2)(C) as 

implemented by 26 CFR 54.4980H–5(e). 

Generally, the cost of health insurance 

is affordable within the meaning of 26 

U.S.C. 36B(c)(2)(C) if the portion an 

employee would have to pay for 

employee-only coverage would not 

exceed a specified percent of household 

income (9.56 percent in 2015). Where 

such incentives would render a plan 

unaffordable for an individual, it would 

be deemed coercive and involuntary to 

require that individual to answer 

disability-related inquiries and/or 

submit to medical examinations 

connected with the wellness program at 

issue. 

(c) Whether there are any methods 

other than those mentioned in the 

proposed regulation and the questions 

above by which the Commission can 

effectuate the intent of both the 

‘‘voluntary’’ requirement in the ADA 

and the provisions in the Affordable 

Care Act intended to encourage 

workplace health promotion and disease 

prevention. 

(2) Should the proposed notice 

requirements of this rule, at section 

1630.14(d)(2)(iv), also include a 

requirement that employees 

participating in wellness programs that 

include disability-related inquiries and/ 

or medical examinations, and that are 

part of a group health plan, provide 

prior, written, and knowing 

confirmation that their participation is 

voluntary? If so, what form should such 

an authorization take? Are principles of 

informed consent in the medical context 

helpful in fashioning an appropriate 

authorization? Are there existing forms 

that could provide adequate protections, 

such as forms developed under HIPAA, 

forms employers already use in 

connection with wellness programs, or 

forms employers use to comply with 

Title II of GINA? What costs would be 

associated with developing an 

appropriate authorization form and/or 

collecting and maintaining 

authorization forms for employees who 

decide to participate in wellness 

programs? 

(3) Should the proposed notice 

requirement apply only to wellness 

programs that offer more than de 

minimis rewards or penalties to 

employees who participate (or decline 

to participate) in wellness programs that 

ask them to respond to disability-related 

inquiries and/or undergo medical 

examinations? If so, how should the 

Commission define ‘‘de minimis’’? 

(4) Which best practices ensure that 

wellness programs are designed to 

promote health and do not operate to 

shift costs to employees with health 

impairments or stigmatized conditions? 

(5) Whether employers offer (or are 

likely to offer in the future) wellness 

programs outside of a group health plan 

or group health insurance coverage that 

use incentives to promote participation 

in such programs or to encourage 

employees to achieve certain health 

outcomes and the extent to which the 

ADA regulations should limit incentives 

provided as part of such programs. 

(6) What will be the practical effect of 

adopting the specific incentive limit set 

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Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 21665 

forth in the proposed rule (rather than 

expressly referencing and incorporating 

the wellness-program incentive limits as 

they are defined by the Secretaries of 

Labor, Treasury, and Health and Human 

Services pursuant to the Affordable Care 

Act)? Specifically, what, if any, will be 

the impact of the proposed rule’s 30- 

percent limit on incentives offered with 

respect to wellness programs intended 

to prevent or reduce tobacco use where 

such programs ask employees to 

respond to disability-related inquiries 

and/or undergo medical examinations? 

Regulatory Procedures 

Executive Order 12866 

Pursuant to Executive Order 12866, 

EEOC has coordinated this proposed 

rule with the Office of Management and 

Budget. Under section 3(f)(1) of 

Executive Order 12866, EEOC has 

determined that the proposed regulation 

will not have an annual effect on the 

economy of $100 million or more, or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

state, local or tribal governments or 

communities. 

Although a detailed cost-benefit 

analysis of the proposed regulation is 

not required, the Commission 

recognizes that providing some 

information on potential costs and 

benefits of the rule may be helpful in 

assisting members of the public in better 

understanding the potential impact of 

the proposed rule. The Commission 

notes that the rule will significantly aid 

compliance with the ADA and with 

HIPAA, as amended by the Affordable 

Care Act, by employers and group 

health plans that offer wellness 

programs. Currently, employers face 

uncertainty as to whether providing 

incentives permitted by HIPAA will 

subject them to liability under the ADA. 

This rule will clarify that the ADA does 

permit employers to offer incentives to 

promote participation in wellness 

programs that include disability-related 

inquiries and/or medical examinations. 

We believe that a potential benefit of 

this rule is that it will enable employers 

to adopt wellness programs that include 

incentives with certainty about their 

obligations under the ADA. The 

Commission does not believe the costs 

associated with the rule are significant. 

Employers covered by the ADA are 

already required to comply with 

wellness program incentive limits for 

health-contingent wellness programs. 

EEOC’s proposed rule differs from 

HIPAA’s wellness program incentives 

only in that it extends the 30 percent 

limit on incentives under healthcontingent wellness programs to 

participatory wellness programs. 

HIPAA, as amended by the Affordable 

Care Act, places no limits on incentives 

for participatory wellness programs. As 

the incentives offered by the vast 

majority of employers currently fall 

below the limit of 30 percent of the cost 

of self-only coverage, the Commission 

does not believe the rule will negatively 

affect the ability of employers to offer 

incentives sufficient to promote 

meaningful participation in wellness 

programs. 

The only other potential cost is 

associated with the requirement that 

employers provide a notice to 

employees informing them what 

medical information will be obtained, 

how it will be used, who will receive it, 

and the restrictions on disclosure. For 

the reasons set forth in the Paperwork 

Reduction Act analysis that follows, the 

Commission concludes that 

approximately 299,115 employers will 

need to develop such a notice. The 

Commission estimates the time required 

to develop the notice to be four hours, 

for a total of 1,196,460 hours. According 

to data from the Bureau of Labor 

Statistics, the average hourly 

compensation for employees in 

‘‘management, professional, and 

related’’ occupations was $55.56 as of 

December 2014, and the average hourly 

compensation for employees working in 

‘‘office and administrative support’’ was 

$23.98. See Bureau of Labor Statistics, 

Employer Costs for Employee 

Compensation—December 2014 (March 

11, 2015), available at www.bls.gov/

news.release/pdf/ecec.pdf. Assuming 

that 50 percent of the time required to 

develop an appropriate notice is 

attributable to employees working in 

management, professional, and related 

occupations and that 50 percent of the 

time is attributable to employees 

working in office and administrative 

support, the Commission estimates that 

the total cost of developing a notice that 

complies with the requirements of the 

proposed rule would be $42,583,000. 

We note that some employers and group 

health plans may already have notices 

that comply with these requirements, 

and that those that do not will incur 

only a one-time cost to develop an 

appropriate notice. The Commission 

seeks comments on these cost estimates. 

Other requirements in the rule will 

result in no costs, since they simply 

restate basic principles of 

nondiscrimination under the ADA. Even 

in the absence of this rule, employers 

are prohibited from requiring employees 

to participate in employee health 

programs that include disability-related 

inquiries and/or medical examinations; 

denying employees health insurance (or 

any other benefit of employment) if they 

do not participate in wellness programs; 

retaliating against employees who file 

charges claiming that a wellness 

program violates the ADA; and 

attempting to induce participation in 

employee health programs through 

interference with their ADA rights, 

coercion, intimidation, and threats. 

Employers are also required to provide 

reasonable accommodations to enable 

employees to enjoy equal benefits and 

privileges of employment, which would 

include participation in employee 

health programs. To the extent 

confidentiality of medical information 

acquired in the course of providing an 

employee health program is required, 

the proposed rule will result in no 

additional costs. The ADA already 

requires employers to keep medical 

information about applicants and 

employees confidential. 

To the extent the proposed rule can be 

read to impose additional 

confidentiality obligations, the 

interpretive guidance to the rule makes 

clear that a wellness program that is part 

of a group health plan may generally 

satisfy its obligation to comply with 

proposed section 1630.14(d)(6) by 

adhering to the HIPAA Privacy Rule. 

See 45 CFR part 160 and Part 164, 

Subparts A and E. An employer that is 

a health plan sponsor and receives 

individually identifiable health 

information from or on behalf of the 

group health plan, as permitted by 

HIPAA when the plan sponsor is 

administering aspects of the plan, may 

generally comply with the proposed 

rule by certifying to the group health 

plan, also pursuant to the HIPAA 

Privacy Rule, that it will not use or 

disclose the information for purposes 

not permitted by its plan documents 

and the Privacy Rule, such as for 

employment purposes, and abiding by 

that certification. Further, if an 

employer is not performing plan 

administration functions on behalf of 

the group health plan, then the 

employer may receive aggregate 

information from the wellness program 

under section 1630.14(d)(6) only so long 

as it is de-identified in accordance with 

the HIPAA Privacy Rule. 

Paperwork Reduction Act 

These proposed additions to EEOC’s 

regulations contain an information 

collection requirement subject to review 

and approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act. As 

required by the Paperwork Reduction 

Act, the EEOC is submitting to OMB a 

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21666 Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 

30According to the RAND Final Report, 

‘‘approximately half of U.S. employers offer 

wellness promotion initiatives.’’ By contrast, the 

Kaiser Survey found that ‘‘[s]eventy-four percent of 

employers offering health benefits’’ offer at least 

one wellness program. 

31The Kaiser Survey reports that 51 percent of 

large employers versus 32 percent of small 

employers ask employees to complete a HRA. 

request for approval of the information 

collection requirement under section 

3507(d) of the Act. Organizations or 

individuals desiring to submit 

comments for consideration by OMB on 

the information collection requirement 

should address them to Chad Lallemand 

in the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street NW., Room 10235, New 

Executive Office Building, Washington, 

DC 20503, or by email to OIRA_

submission@omb.eop.gov. 

Copies of comments should also be 

sent to Bernadette Wilson, Acting 

Executive Officer, Executive Secretariat, 

Equal Employment Opportunity 

Commission, 131 M Street NE., 

Washington, DC 20507. As a 

convenience to commenters, the 

Executive Secretariat will accept 

comments totaling six or fewer pages via 

FAX transmittal. This limitation is 

necessary to assure access to the 

equipment. The telephone number of 

the fax receiver is (202) 663–4114. (This 

is not a toll-free number.) Receipt of 

FAX transmittals will not be 

acknowledged, except that the sender 

may request confirmation of receipt by 

calling the Executive Secretariat staff at 

(202) 663–4070 (voice) or (202) 663– 

4074 (TTY). (These are not toll-free 

numbers.) Instead of sending written 

comments to EEOC, you may submit 

comments and attachments 

electronically at http://

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions online for submitting 

comments. All comments received 

through this portal will be posted 

without change, including any personal 

information you provide. Copies of 

comments submitted by the public to 

EEOC directly or through the Federal 

eRulemaking Portal will be available for 

review at the Commission’s library 

between the hours of 9:00 a.m. and 5:00 

p.m. Eastern Time or can be reviewed at 

http://www.regulations.gov. 

Overview of This Information 

Collection 

Collection Title: Notice requirement 

under Title I of the ADA, 29 CFR 

1630.14(d)(2)(iv). 

OMB number: 3046–xxxx. 

Description of affected public: 

Employers with 15 or more employees 

that are subject to Title I of the ADA and 

offer wellness programs as part of group 

health plans. 

Number of respondents: 299,115. 

Initial one-time hour burden: 

1,196,460. 

Annual hour burden: None. 

Number of forms: None. 

Federal cost: None. 

Abstract: The proposed rule says that 

a wellness program that includes 

disability-related inquiries or medical 

examinations and that is part of a group 

health plan must meet several 

requirements to be deemed voluntary, 

including providing a notice to 

employees informing them what 

medical information will be obtained, 

how it will be used, who will receive it, 

and the restrictions on disclosure. 

Burden Statement: We estimate that 

there are approximately 782,000 

employers with 15 or more employees 

subject to the ADA and, of that number, 

one half to two thirds (391,000 to 

586,500) offer some type of wellness 

program.30 Of those employers, 32 

percent to 51 percent require employees 

to complete a health risk assessment 

(HRA) that likely contains disabilityrelated questions.31 Using the highest 

estimates, we assume that 299,115 (51 

percent of 586,500 employers) will be 

covered by this requirement. 

Some employers and group health 

plans may already use forms that 

comply with the proposed notice 

requirement; therefore, the burden only 

will be on employers and group health 

plans that will incur a one-time burden 

to develop an appropriate notice to 

ensure that employees who provide 

medical information pursuant to a 

wellness program do so voluntarily. 

This notice may be included on or 

attached to any HRA employees are 

asked to complete and should explain 

what medical information will be 

obtained, how it will be used, who will 

receive it, and the restrictions on 

disclosure. Assuming that creation of 

such a document would take four hours, 

and assuming that 299,115 employers 

would be covered by the proposed 

regulation, this one-time burden would 

be 1,196,460 hours. Because employers 

do not have to develop a new form 

unless they collect medical information 

for a different purpose, they will be able 

to annually redistribute the same notice 

to all relevant employees. 

For those wishing to comment on the 

above information collection, OMB is 

particularly interested in comments 

which: 

(1) Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

Commission’s functions, including 

whether the information will have 

practical utility; 

(2) Evaluate the accuracy of the 

Commission’s estimate of the burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submission of responses. 

Regulatory Flexibility Act 

Title I of the ADA applies to 

approximately 782,000 employers with 

15 or more employees subject to the 

ADA, approximately 764,233 of which 

are small firms (entities with 15–500 

employees) according to data provided 

by the Small Business Administration 

Office of Advocacy. See Firm Size Data 

at http://www.sba.gov/advocacy/849/

12162. 

The Commission certifies under 5 

U.S.C. 605(b) that this proposed rule 

will not have a significant economic 

impact on a substantial number of small 

entities because it imposes no reporting 

burdens and only minimal costs on such 

firms. The proposed rule clarifies that, 

in most respects, employers who offer 

wellness programs that are part of their 

health plans may offer incentives to 

employees consistent with HIPAA and 

the Affordable Care Act without 

violating the ADA. The amount of an 

incentive offered for participation (alone 

or in combination with incentives 

offered for health-contingent wellness 

programs) in a wellness program will 

not render a program involuntary under 

the ADA as long as the incentive does 

not exceed 30 percent of the total cost 

of employee-only coverage. 

To the extent that employers will 

expend resources to train human 

resources staff and others on the revised 

rule, we note that the EEOC conducts 

extensive outreach and technical 

assistance programs, many of them at no 

cost to employers, to assist in the 

training of relevant personnel on EEOrelated issues. For example, in FY 2013, 

the agency’s outreach programs reached 

more than 280,000 persons through 

participation in more than 3,800 no-cost 

educational, training, and outreach 

events. We estimate that the typical 

human resources professional will need 

to dedicate, at most, 90 minutes to gain 

a satisfactory understanding of the 

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Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 21667 

revised regulations. We further estimate 

that the median hourly pay rate of a 

human resources professional is 

approximately $48.50. See Bureau of 

Labor Statistics, Occupational 

Employment and Wages, May 2013 at 

http://www.bls.gov/oes/current/

oes113121.htm. Assuming that small 

entities have between one and five 

human resources professionals/

managers, we estimate that the cost per 

entity of providing appropriate training 

will be between approximately $72.75 

and $363.75. 

EEOC does not believe that this cost 

will be significant for the impacted 

small entities. We urge small entities to 

submit comments concerning EEOC’s 

estimates of the number of small entities 

affected, as well as the cost to those 

entities. 

Unfunded Mandates Reform Act of 1995 

This proposed rule will not result in 

the expenditure by state, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

List of Subjects in 29 CFR Part 1630 

Equal employment opportunity, 

Individuals with disabilities. 

For the Commission, 

Dated: April 13, 2015. 

Bernadette B. Wilson, 

Acting Executive Officer. 

For the reasons set forth in the 

preamble, the EEOC proposes to amend 

29 CFR part 1630 to read as follows: 

PART 1630—[AMENDED] 

■ 1. The authority citation for part 1630 

continues to read as follows: 

Authority: 42 U.S.C. 12116 and 12205a of 

the American with Disabilities Act, as 

amended. 

■ 2. Amend § 1630.14 by: 

■ a. Redesignating paragraph (d)(1) as 

paragraph (d)(4); 

■ b. Redesignating paragraph (d)(2) as 

paragraph (d)(5); 

■ c. Adding new paragraphs (d)(1), 

(d)(2), (d)(3), (d)(6), and (d)(7). 

The revisions and additions read as 

follows: 

§ 1630.14 Medical examinations and 

inquiries specifically permitted. 

* * * * * 

(d) * * * 

(1) Employee health program. An 

employee health program, including any 

disability-related inquiries or medical 

examinations that are part of such 

program, must be reasonably designed 

to promote health or prevent disease. A 

program satisfies this standard 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. 

(2) Voluntary. An employee health 

program that includes disability-related 

inquiries or medical examinations 

(including disability-related inquiries or 

medical examinations that are part of a 

health risk assessment) is voluntary as 

long as a covered entity: 

(i) Does not require employees to 

participate; 

(ii) 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 (except as allowed 

under paragraph (d)(3) of this section) 

for employees who do not participate; 

(iii) 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, at 42 U.S.C. 

12203; and 

(iv) Where a health program is a 

wellness program that is part of a group 

health plan, provides employees with a 

notice that: 

(A) Is written so that the employee 

from whom medical information is 

being obtained is reasonably likely to 

understand it; 

(B) Describes the type of medical 

information that will be obtained and 

the specific purposes for which the 

medical information will be used; and 

(C) Describes the restrictions on the 

disclosure of the employee’s medical 

information, the employer 

representatives or other parties with 

whom the information will be shared, 

and the methods that the covered entity 

will use to ensure that medical 

information is not improperly disclosed 

(including whether it complies with the 

measures set forth in the HIPAA 

regulations codified at 45 CFR parts 160 

and 164). 

(3) Incentives offered for employee 

wellness programs that are part of a 

group health plan. The use of incentives 

(financial or in-kind) in an employee 

wellness program, whether in the form 

of a reward or penalty, together with the 

reward for any other wellness program 

that is offered as part of a group health 

plan (as defined in 29 U.S.C. 1191b(a)), 

will not render the program involuntary 

if the maximum allowable incentive 

available under the program (whether 

the program is a participatory program 

or a health-contingent program, or some 

combination of the two, as those terms 

are defined in regulations at 26 CFR 

54.9802–1(f)(1)(ii) and (iii), 29 CFR 

2590.702(f)(1)(ii) and (iii), and 45 CFR 

146.121(f)(1)(ii) and (iii), respectively) 

does not exceed 30 percent of the total 

cost of employee-only coverage. 

* * * * * 

(6) Except as permitted under 

paragraph (d)(4) and as is necessary to 

administer the health plan, information 

obtained under paragraph (d) of this 

section regarding the medical 

information or history of any individual 

may only be provided to an ADA 

covered entity in aggregate terms that do 

not disclose, or are not reasonably likely 

to disclose, the identity of any 

employee. 

(7) Compliance with the requirements 

of paragraph (d) of this section, 

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 of the Civil Rights 

Act of 1964, 42 U.S.C. 2000e et seq., the 

Equal Pay Act of 1963, 29 U.S.C. 206(d), 

the Age Discrimination in Employment 

Act of 1967, 29 U.S.C. 621 et seq., Title 

II of the Genetic Information 

Nondiscrimination Act of 2008, 42 

U.S.C. 2000ff, et seq., or other sections 

of Title I of the ADA. 

■ 3. In the Appendix to Part 1630 revise 

Section 1630.14(d), to read as follows: 

Appendix to Part 1630—Interpretive 

Guidance on Title I of the Americans 

With Disabilities Act 

* * * * * 

Section 1630.14 Medical Examinations and 

Inquiries Specifically Permitted 

Section 1630.14(d)(1): Health Program 

Part 1630 permits voluntary medical 

examinations and inquiries, including 

voluntary medical histories, as part of 

employee health programs. These health 

programs include wellness programs, which 

often incorporate, for example: A health risk 

assessment (HRA) (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 in which employees can 

engage (such as walking or exercising daily); 

coaching to help employees meet health 

goals; and/or the administration of 

prescription drugs (like insulin). Many 

employers offer wellness programs as part of 

a group health plan as a means of improving 

overall employee health with the goal of 

realizing lower health care costs. 

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It is not sufficient for a covered entity 

merely to claim that its collection of medical 

information is part of a wellness program; the 

program, including any disability-related 

inquiries and medical examinations that are 

part of such program, must be reasonably 

designed to promote health or prevent 

disease. In order to meet this standard, the 

program must have a reasonable chance of 

improving the health of, or preventing 

disease in, participating employees, and must 

not be overly burdensome, a subterfuge for 

violating the ADA or other laws prohibiting 

employment discrimination, or highly 

suspect in the method chosen to promote 

health or prevent disease. Conducting a HRA 

and/or a biometric screening of employees 

for the purpose of alerting them to health 

risks of which they may have been unaware 

would meet this standard, as would the use 

of aggregate information from employee 

HRAs by an employer to design and offer 

health programs aimed at specific conditions 

that are prevalent in the workplace. An 

employer might conclude from aggregate 

information, for example, that a significant 

number of its employees have diabetes or 

high blood pressure and might design 

specific programs that would enable 

employees to treat or manage these 

conditions. On the other hand, collecting 

medical information on a health 

questionnaire without providing employees 

follow-up information or advice, such as 

providing feedback about risk factors or using 

aggregate information to design programs or 

treat any specific conditions, would not be 

reasonably designed to promote health. 

Additionally, a program is not reasonably 

designed to promote health or prevent 

disease if it imposes, as a condition to 

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. 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. 

Section 1630.14(d)(2): Definition of 

‘‘Voluntary’’ 

Section 1630.14(d)(2)(i)–(iii) of this part 

says that participation in employee health 

programs that include disability-related 

inquiries or medical examinations (such as 

disability-related inquiries or medical 

examinations that are part of a HRA) must be 

voluntary in order to comply with the ADA. 

This means that covered entities may not 

require employees to participate in such 

programs, may not deny employees access to 

health coverage under any of its group health 

plans or particular benefits packages within 

a group health plan for non-participation, 

may not limit coverage under their health 

plans for such employees, except to the 

extent the limitation (e.g., having to pay a 

higher deductible) may be the result of 

forgoing a financial incentive permissible 

under paragraph (d)(3), and may not take any 

other adverse action against employees who 

choose not to answer disability-related 

inquiries or submit to medical examinations. 

Additionally, covered entities may not 

retaliate against, interfere with, coerce, 

intimidate, or threaten employees within the 

meaning of Section 503 of the ADA, at 42 

U.S.C. 12203. For example, an employer may 

not retaliate against an employee who 

refused to participate in a health program or 

filed a charge with the EEOC concerning the 

program, may not coerce an employee into 

participating in a health program or into 

giving the employer access to medical 

information collected as part of the program, 

and may not threaten an employee with 

discipline if the employee does not 

participate in a health program. See 42 U.S.C. 

12203(a) and (b); 29 CFR 1630.12. 

Section 1630.14(d)(2)(iv) of this part also 

states that for a wellness program that is part 

of a group health plan to be voluntary, an 

employer must provide employees with a 

notice clearly explaining what medical 

information will be obtained, how the 

medical information will be used, who will 

receive the medical information, the 

restrictions on its disclosure, and the 

methods the covered entity uses to prevent 

improper disclosure of medical information. 

Section 1630.14(d)(3): Limitations on 

Incentives 

The ADA, interpreted in light of the Health 

Insurance Portability and Accountability Act 

(HIPAA), as amended by the Affordable Care 

Act, does not prohibit the use of incentives 

to encourage participation in employee 

health programs, but it does place limits on 

them. In general, the use of limited 

incentives (which include both financial and 

in-kind incentives, such as time-off awards, 

prizes, or other items of value) in a wellness 

program that is part of a group health plan 

or group health insurance coverage will not 

render a wellness program involuntary. 

However, the maximum allowable incentive 

for a participatory program that involves 

asking disability-related questions or 

conducting medical examinations (such as 

having employees complete a HRA) or for a 

health-contingent program that requires 

participants to satisfy a standard related to a 

health factor may not exceed 30 percent of 

the total cost of employee-only coverage. 

Thus, for example, for purposes of 

compliance with these provisions under the 

ADA, suppose a group health plan under 

which an employee is enrolled has a total 

annual premium for employee-only coverage 

of $5,000 (which includes both the 

employer’s and employee’s contributions 

toward coverage). The plan provides a $250 

reward to employees who complete a HRA 

(this reward is given to any participant who 

completes the HRA, without regard to the 

health issues identified as part of the 

assessment). The plan also offers a healthcontingent wellness program to promote 

cardiovascular health, with an opportunity to 

earn a $1,500 reward. An employee who 

satisfies both components of the program 

could earn a total reward of $1,750. Such a 

reward would violate the ADA because the 

total reward available exceeds 30 percent of 

the total cost of coverage. However, if the 

employer offered no reward for completing 

the HRA and a $1,500 reward for achieving 

health outcomes under the wellness program 

(or offered $750 for completing the HRA and 

$750 for achieving health outcomes in the 

wellness program), the incentives would 

comply with the ADA. Not all wellness 

programs require disability-related inquiries 

or medical examinations in order to earn an 

incentive. Examples may include attending 

nutrition, weight loss, or smoking cessation 

classes. These types of programs are not 

subject to the ADA incentive rules discussed 

here, although programs that qualify as 

health-contingent programs are subject to 

HIPAA incentive limits. 

Under the ADA, regardless of whether a 

wellness program includes disability-related 

inquiries or medical examinations, 

reasonable accommodations must be 

provided, absent undue hardship, to enable 

employees with disabilities to earn whatever 

financial incentive an employer or other 

covered entity offers. Providing a reasonable 

alternative standard and notice to the 

employee of the availability of a reasonable 

alternative under HIPAA and the Affordable 

Care Act as part of a health-contingent 

program would likely fulfill a covered 

entity’s obligation to provide a reasonable 

accommodation under the ADA. However, 

under the ADA, a covered entity would have 

to provide a reasonable accommodation for a 

participatory program even though HIPAA 

and the Affordable Care Act do not require 

such programs to offer a reasonable 

alternative standard. 

For example, an employer that offers 

employees a financial incentive to attend a 

nutrition class, regardless of whether they 

reach a healthy weight as a result, would 

have to provide a sign language interpreter so 

that an employee who is deaf and who needs 

an interpreter to understand the information 

communicated in the class could earn the 

incentive, as long as providing the interpreter 

would not result in undue hardship to the 

employer. Similarly, an employer would, 

absent undue hardship, have to provide 

written materials that are part of a wellness 

program in an alternate format, such as in 

large print or on computer disk, for someone 

with a vision impairment. An individual 

with a disability also may need a reasonable 

accommodation to participate in a wellness 

program that includes disability-related 

inquiries or medical examinations, including 

waiver of a generally applicable requirement. 

For example, an employer that offers a 

reward for completing a biometric screening 

that includes a blood draw would have to 

provide an alternative test (or certification 

requirement) so that an employee with a 

disability that makes drawing blood 

dangerous can participate and earn the 

incentive. 

Application of Section 1630.14(d)(3) to 

Smoking Cessation Programs 

Regulations implementing the wellness 

provisions in HIPAA, as amended by the 

Affordable Care Act, permit covered entities 

to offer incentives as high as 50 percent of 

the total cost of employee coverage for 

tobacco-related wellness programs, such as 

smoking cessation programs. As noted above, 

the incentive rules in Section 1630.14(d)(3) 

apply only to employee health programs that 

include disability-related inquiries or 

medical examinations. A smoking cessation 

program that merely asks employees whether 

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or not they use tobacco (or whether or not 

they ceased using tobacco upon completion 

of the program) is not an employee health 

program that includes disability-related 

inquiries or medical examinations. The 

incentive rules in Section 1630.14(d)(3) 

would not apply to incentives a covered 

entity could offer in connection with such a 

program. Therefore, a covered entity would 

be permitted to offer incentives as high as 50 

percent of the cost of employee coverage for 

that smoking cessation program, pursuant to 

the regulations implementing HIPAA, as 

amended by the Affordable Care Act, without 

implicating the disability-related inquiries or 

medical examinations provision of the ADA. 

The ADA nondiscrimination requirements, 

such as the need to provide reasonable 

accommodations that provide employees 

with disabilities equal access to benefits, 

would still apply. 

By contrast, a biometric screening or other 

medical examination that tests for the 

presence of nicotine or tobacco is a medical 

examination. The ADA financial incentive 

rules discussed supra would therefore apply 

to a wellness program that included such a 

screening. 

Section 1630.14(d)(4)–(6): Confidentiality 

Paragraphs (d)(4) and (d)(5) say that 

medical records developed in the course of 

providing voluntary health services to 

employees, including wellness programs, 

must be maintained in a confidential manner 

and must not be used for any purpose in 

violation of this part, such as limiting 

insurance eligibility. See House Labor Report 

at 75; House Judiciary Report at 43–44. 

Further, although an exception to 

confidentiality that tracks the language of the 

ADA itself states that information gathered in 

the course of providing employees with 

voluntary health services may be disclosed 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. In 

addition, as described more fully below, 

certain disclosures that are permitted for 

employee health programs generally may not 

be permissible under the HIPAA Privacy 

Rule for wellness programs that are part of 

a group health plan without the written 

authorization of the individual. 

Section 1630.14(d)(6) says that a covered 

entity only may receive information collected 

as part of an employee health program in 

aggregate form that does not disclose, and is 

not reasonably likely to disclose, the identity 

of specific individuals except as is necessary 

to administer the plan or as permitted by 

section 1630.14(d)(4). Notably, both 

employers that sponsor employee health 

programs and the employee health programs 

themselves (if they are administered by the 

employer or qualify as the employer’s agent) 

are responsible for ensuring compliance with 

this provision. 

Where a wellness program is part of a 

group health plan, the individually 

identifiable health information collected 

from or created about participants as part of 

the wellness program is protected health 

information (PHI) under the HIPAA Privacy, 

Security, and Breach Notification Rules. (45 

CFR parts 160 and 164.) The HIPAA Privacy, 

Security, and Breach Notification Rules 

apply to HIPAA covered entities, which 

include group health plans, and generally 

protect identifiable health information 

maintained by or on behalf of such entities, 

by among other provisions, setting limits and 

conditions on the uses and disclosures that 

may be made of such information. 

PHI is information, including demographic 

data that identifies the individual or for 

which there is a reasonable basis to believe 

it can be used to identify the individual 

(including, for example, address, birth date, 

or social security number), and that relates 

to: An individual’s past, present, or future 

physical or mental health or condition; the 

provision of health care to the individual; or 

the past, present, or future payment for the 

provision of health care to the individual. 

HIPAA covered entities may not disclose PHI 

to an individual’s employer except in limited 

circumstances. For example, as discussed 

more fully below, an employer that sponsors 

a group health plan may receive PHI to 

administer the plan (without authorization of 

the individual), but only if the employer 

certifies to the plan that it will safeguard the 

information and not improperly use or share 

the information. See Standards for Privacy of 

Individually Identifiable Health Information 

(‘‘Privacy Rule’’), Pub. L. 104–191; 45 CFR 

part 160 and Part 164, Subparts A and E. 

However, there are no restrictions on the use 

or disclosure of health information that has 

been de-identified in accordance with the 

HIPAA Privacy Rule. Individuals may file a 

complaint with HHS if a health plan fails to 

comply with privacy requirements and HHS 

may impose civil money penalties for 

noncompliance. 

A wellness program that is part of a HIPAA 

covered entity likely will be able to comply 

with its obligation under section 

1630.14(d)(6) by complying with the HIPAA 

Privacy Rule. An employer that is a health 

plan sponsor and receives individually 

identifiable health information from or on 

behalf of the group health plan, as permitted 

by HIPAA when the plan sponsor is 

administering aspects of the plan, may 

generally satisfy its requirement to comply 

with section 1630.14(d)(6) by certifying to the 

group health plan, as provided by 45 CFR 

164.504(f)(2)(ii), that it will not use or 

disclose the information for purposes not 

permitted by its plan documents and the 

Privacy Rule, such as for employment 

purposes, and abiding by that certification. 

Further, if an employer is not performing 

plan administration functions on behalf of 

the group health plan, it may receive 

aggregate information from the wellness 

program under section 1630.14(d)(6) only so 

long as the information is de-identified in 

accordance with the HIPAA Privacy Rule. In 

addition, disclosures of protected health 

information from the wellness program may 

only be made in accordance with the Privacy 

Rule. Thus, certain disclosures that are 

otherwise permitted under section 

1630.14(d)(4) for employee health programs 

generally may not be permissible under the 

Privacy Rule for wellness programs that are 

part of a group health plan without the 

written authorization of the individual. 

Employers and wellness program providers 

must take steps to protect the confidentiality 

of employee medical information provided as 

part of an employee health program. Some of 

the following steps may be required by law; 

others may be best practices. Proper training 

of individuals who handle medical 

information in the requirements of the 

HIPAA Rules, the ADA, and any other 

applicable privacy laws is critical. Employers 

and program providers should have clear 

privacy policies and procedures related to 

the collection, storage, and disclosure of 

medical information. On-line systems and 

other technology should guard against 

unauthorized access, such as through use of 

encryption for medical information stored 

electronically. 

As a best practice, individuals who handle 

medical information that is part of an 

employee health program should not be 

responsible for making decisions related to 

employment, such as hiring, termination, or 

discipline. Use of a third-party vendor may 

reduce the risk that medical information will 

be disclosed to individuals who make 

employment decisions, particularly for 

employers whose organizational structure 

makes it difficult to provide adequate 

safeguards. If an employer uses a third-party 

vendor, it should be familiar with the 

vendor’s privacy policies for ensuring the 

confidentiality of medical information. 

Employers that administer their own 

wellness programs need adequate firewalls in 

place to prevent unintended disclosure. 

If individuals who handle medical 

information obtained through a wellness 

program also act as decision-makers (which 

may be the case for a small employer that 

administers its own wellness program), they 

may not use the information to discriminate 

on the basis of disability in violation of the 

ADA. 

Breaches of confidentiality should be 

reported to affected employees immediately 

and should be thoroughly investigated. 

Employers should make clear that 

individuals responsible for disclosures of 

confidential medical information will be 

disciplined and should consider 

discontinuing relationships with vendors 

responsible for breaches of confidentiality. 

Section 1630.14(d)(7): Compliance With 

Other Employment Nondiscrimination Laws 

Finally, section 1630.14(d)(7) clarifies that 

compliance with the requirements of 

paragraph (d) of this section, including the 

limits on incentives applicable under the 

ADA, does not mean that a covered entity 

complies with other federal employment 

nondiscrimination laws, such as Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. 2000e 

et seq., the Equal Pay Act of 1963, 29 U.S.C. 

206(d), the Age Discrimination in 

Employment Act of 1967, 29 U.S.C. 621 et 

seq., Title II of the Genetic Information 

Nondiscrimination Act of 2008, 42 U.S.C. 

2000ff et seq., and other sections of Title I of 

the ADA. Thus, 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 

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21670 Federal Register / Vol. 80, No. 75 / Monday, April 20, 2015 / Proposed Rules 

discriminates on the basis of race, sex, 

national origin, or age. 

[FR Doc. 2015–08827 Filed 4–16–15; 11:15 am] 

BILLING CODE 6570–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Safety and Environmental 

Enforcement 

30 CFR Parts 250 and 254 

Bureau of Ocean Energy Management 

30 CFR Part 550 

[Docket ID: BSEE–2013–0011; 15XE1700DX 

EX1SF0000.DAQ000 EEEE500000] 

RIN 1082–AA00 

Oil and Gas and Sulphur Operations 

on the Outer Continental Shelf— 

Requirements for Exploratory Drilling 

on the Arctic Outer Continental Shelf 

AGENCY: Bureau of Safety and 

Environmental Enforcement (BSEE), 

Interior; Bureau of Ocean Energy 

Management (BOEM), Interior. 

ACTION: Extension of comment period 

for Notice of Proposed Rulemaking 

SUMMARY: BOEM and BSEE are 

extending the public comment period 

on the Notice of Proposed Rulemaking 

entitled, ‘‘Oil and Gas and Sulphur 

Operations on the Outer Continental 

Shelf—Requirements for Exploratory 

Drilling on the Arctic Outer Continental 

Shelf,’’ which was published in the 

Federal Register on February 24, 2015, 

(80 FR 9916). The original public 

comment period would have ended on 

April 27, 2015. However, BOEM and 

BSEE have received public comments 

requesting an extension of the comment 

period. BOEM and BSEE have reviewed 

the extension requests and determined 

that a 30-day comment period extension 

to May 27, 2015, is appropriate. 

DATES: The comment period for the 

Notice of Proposed Rulemaking 

published on February 24, 2015, (80 FR 

9916) has been extended. Written 

comments must be received by the 

extended due date of May 27, 2015. 

BOEM and BSEE may not fully consider 

comments received after this date. 

ADDRESSES: You may submit comments 

on the proposed rulemaking by any of 

the following methods. Please use the 

Regulation Identifier Number (RIN) 

1082–AA00 as an identifier in your 

message. For comments specifically 

related to the draft Environmental 

Assessment conducted under the 

National Environmental Policy Act of 

1969 (NEPA), please refer to NEPA in 

the heading of your message. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. In the entry 

entitled ‘‘Enter Keyword or ID’’, enter 

BSEE–2013–0011 then click search. 

Follow the instructions to submit public 

comments and view supporting and 

related materials available for this 

rulemaking. BOEM and BSEE may post 

all submitted comments in their 

entirety. 

• Mail or hand-carry comments to the 

Department of the Interior (DOI); Bureau 

of Safety and Environmental 

Enforcement; Attention: Regulations 

and Standards Branch; 45600 Woodland 

Road, Sterling, Virginia 20166. Please 

reference ‘‘Oil and Gas and Sulphur 

Operations on the Outer Continental 

Shelf—Requirements for Exploratory 

Drilling on the Arctic Outer Continental 

Shelf, 1082–AA00’’ in your comments 

and include your name and return 

address. Please note that this address for 

BSEE is new; however, any comments 

already submitted to BSEE’s former 

address (381 Elden Street, Herndon, 

Virginia 20181) do not need to be 

resubmitted to the new address. 

• Public Availability of Comments— 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

FOR FURTHER INFORMATION CONTACT: 

Mark E. Fesmire, BSEE, Alaska Regional 

Office, mark.fesmire@bsee.gov, (907) 

334–5300; John Caplis, BSEE, Oil Spill 

Response Division, john.caplis@

bsee.gov, (703) 787–1364; or David 

Johnston, BOEM, Alaska Regional 

Office, david.johnston@boem.gov, (907) 

334–5200. 

SUPPLEMENTARY INFORMATION: BOEM 

and BSEE published a notice of 

proposed rulemaking on Requirements 

for Exploratory Drilling on the Arctic 

Outer Continental Shelf (OCS) on 

February 24, 2015 (80 FR 9916). This 

proposed rule is intended to provide 

regulations to ensure Arctic OCS 

exploratory drilling operations are 

conducted in a safe and responsible 

manner that takes into account the 

unique conditions of Arctic OCS 

drilling and Alaska Natives’ cultural 

traditions and need to access 

subsistence resources. The Arctic region 

is known for its oil and gas resource 

potential, its vibrant ecosystems, and 

the Alaska Native communities, who 

rely on the Arctic’s resources for 

subsistence and cultural traditions. The 

region is also characterized by extreme 

environmental conditions, geographic 

remoteness, and a relative lack of fixed 

infrastructure and existing operations. 

The proposed rule would add to, and 

revise existing regulations in, 30 CFR 

parts 250, 254, and 550 for Arctic OCS 

oil and gas activities. The proposed rule 

would focus on Arctic OCS exploratory 

drilling activities that use mobile 

offshore drilling units, and related 

operations during the Arctic OCS openwater drilling season. 

After publication of the proposed 

rule, BOEM and BSEE received public 

comments asking BOEM and BSEE to 

extend the comment period on the 

proposed rule by 60 days. BOEM and 

BSEE are extending the original 60-day 

comment period by an additional 30 

days to provide additional time for 

review of and comment on the Notice of 

Proposed Rulemaking. Accordingly, 

written comments must be submitted by 

the extended due date of May 27, 2015. 

BOEM and BSEE may not fully consider 

comments received after this date. 

Dated: April 14, 2015. 

Janice M. Schneider, 

Assistant Secretary Land and Minerals 

Management. 

[FR Doc. 2015–09035 Filed 4–17–15; 8:45 am] 

BILLING CODE 4310–VH–P; 4310–MR–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2015–0178] 

RIN 1625–AA00 

Safety Zone, Volvo Ocean Race 

Newport; East Passage, Narragansett 

Bay, RI 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

establish a safety zone in the navigable 

waters of the East Passage, Narragansett 

Bay, RI, during the Volvo Ocean Race 

Newport marine event. This safety zone 

is intended to safeguard mariners from 

the hazards associated with high-speed, 

high-performance sailing vessels 

competing in inshore races on the 

waters of the East Passage, Narragansett 

Bay, RI. Vessels would be prohibited 

from entering into, transiting through, 

mooring, or anchoring within this safety 

mstockstill on DSK4VPTVN1PROD with PROPOSALS