This article says it best. The EEOC activity against employer-sponsored wellness programs is most troubling because the EEOC has not issued formal guidance for employers to follow. It’s also concerning that the incentives in question in the action against Honeywell are not tied to achieving specific health outcomes, but to participation. Participation incentives are both more common and less controversial than outcomes-based incentives. While the reasons for the EEOC litigation are related to GINA and ADA, the ACA allows employers to sponsor incentives for up to 30% of plan costs for outcomes-based incentives - with the opportunity for a 50% incentive for non-tobacco use. The recent activity may have an impact on employers’ willingness to take advantage of the outcomes-based incentives allowed under the ACA until there is clarity. According to Mercer survey data, over half of all employers have some type of incentive in place, and that number has been growing along with employers’ interest in promoting health, well-being and consumerism.