Earlier this year, the EEOC issued an opinion letter relating to the application of the Americans with Disabilities Act to corporate wellness programs. An employer asked for an EEOC advisory opinion as to whether its proposed policy of providing financial incentives for employees who successfully participate in the program would be affected by the ADA accommodation provisions. The plan had a specific provision benefiting employees who demonstrated that they took their medicine 80% of the time.
As you can see from the letter, the EEOC found that an employer would have to make, or at least offer, accommodations to employees who were somehow unable to meet the requirements of the program because of a qualifying disability. The Commission's position is consistent with HIPAA's "reasonable alternative standard", which also aims to make employer health benefits incentive programs accessible to disabled individuals to the same extent as the programs are accessible to the rest of the workforce.
A couple of other key points: because the Commission is obviously taking an expansive view of what constitutes a wellness program under its regulations, an employer should be prepared to face ADA challenges to those programs; such wellness programs must be voluntary; and an employer may not penalize employees who do not participate (i.e. the employer can only offer a benefit). Also note that the Commission is still being coy about whether offering a benefit for successful wellness program participation is in fact some type of penalty, or some other functional equivalent of a requirement to participate in the program.
This topic is only going to increase in importance, because under ObamaCare employers can increase the incentives for successful participation from 20% of the cost to 30%. Cost incentives are even more significant for programs designed to reduce tobacco usage (up to 50%). As employers move to put these programs in place, and allow their employees to escape at least some of the cost hikes implicit under Obama care, the accommodation question is going to come up more frequently.