EEOC Issues New Rules on Employer Wellness Programs
Today, the federal Equal Employment Opportunity Commission (EEOC) issued final rules on how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to employer wellness programs that are part of a group health plan. The intent of the new rules is to provide guidance on how workplace wellness programs can comply with the ADA, GINA and the Affordable Care Act (ACA). The rules also provide protections for employees against discrimination.
The rules will apply only prospectively to workplace wellness programs beginning on or after January 1, 2017.
Some employers that provide health insurance also offer wellness programs that intend to encourage healthier lifestyles or prevent disease. Sometimes these programs use medical questionnaires or health risk assessments and biometric screenings to determine an employee’s health risk factors, such as body weight, cholesterol, blood glucose and blood pressure levels. In some cases, the programs offer financial or other incentives for employees who participate and achieve certain outcomes.
This is the concern: the ADA and GINA both limit the circumstances in which employers may ask employees about their health or require them to undergo medical examinations, but allow such inquiries and exams if the employer is providing health or genetic services and they are part of a voluntary wellness program.
The challenge is, when wellness programs offer financial and other incentives for employees to participate or to achieve certain health outcomes, do these incentives render the programs involuntary.
The new regulations set a limit on wellness programs that require employees to answer disability-related questions or undergo medical exams to earn a reward or avoid a penalty:
- Under the final ADA rule, companies may offer incentives of up to 30 percent of the total cost of self-only coverage in connection with wellness programs.
- Under the final GINA rule, the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.
- Incentives are not allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee’s spouse and an employee’s children.
Employers also will want to familiarize themselves with these key points:
- If a company health program seeks information about employee health or medical examinations, the program must be reasonably designed to promote health or prevent disease.
- Employees may not be required to participate in a wellness program, and they may not be denied health coverage, prohibited from choosing a particular plan or disciplined if they refuse to participate.
- Employees may not face threats, intimidation or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes.
- Wellness programs may never be used to discriminate based on disability, and safeguards must be in place to prevent such discrimination.
- Medical information collected as a part of a wellness program may be disclosed to employers only in an aggregate form that does not reveal the employees’ identities and must be kept confidential in accordance with ADA and GINA requirements. Best practices for securing confidentiality are provided in interpretative guidance.
- Individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentives an employer offers.
- Employers will be required to provide employees with a notice that describes what medical information will be collected; with whom it will be shared; how it will be used; and how it will be kept confidential.
Whether a new notice will be required depends on if the employer already clearly provides the information required by the rule. The EEOC has indicated that it will provide a sample notice on its website.
The EEOC also published:
- A question-and-answer document on employer wellness programs and the ADA
- A question and answer document on employer wellness programs and GINA
- Small business documents relating to wellness programs and the ADA and wellness programs and GINA