In a June 24, 2011 informal discussion letter, the Office of Legal Counsel of the EEOC clarified its position on whether and to what extent an employer can offer incentives for certain wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

The letter reiterates that the ADA authorizes employers to collect medical histories as part of an employee wellness program if the information is provided voluntarily. A program is voluntary, according to EEOC guidance, if the employer does not require participation or punish employees who do not participate. However, the letter confirms that the EEOC takes no position on whether the ADA permits employers to offer financial incentives for employees to participate in wellness programs that include disability-related inquiries or medical examinations.

Like the ADA, GINA (under an exception to its general prohibition on requesting genetic information) permits employers to collect genetic information about employees on a voluntary basis in conjunction with wellness programs. The individual receiving the services must provide voluntary, knowing and written authorization. GINA prohibits employers from offering financial incentives to provide genetic information as part of a wellness program. However, if an employee voluntarily provides genetic information to an employer, the employer may use that information to guide the individual into a disease management program. The program may offer financial incentives for participation or for meeting specific health goals (like reaching a weight loss or cholesterol goal) if the program is available to:

While not legally binding on the agency, the letter is an indication of the EEOC's intent to enforce the ADA and GINA. Although the EEOC does not enforce Title I of GINA, the agency clarified that its position on financial incentives for wellness programs intends to be consistent with the positions taken by the agencies that do enforce Title I, which include the DOL, Treasury Department and the Department of Health and Human Services.