• EEOC Releases Final Rules on Employer Wellness Programs
  • July 26, 2016
  • Law Firm: - Office
  • The Equal Employment Opportunity Commission has issued final rules on how the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act apply to employer wellness programs that require medical information from employees and their spouses.

    Under the rules, employers may provide limited incentives to employees or inducements to their spouses (but not children) for answering disability-related questions or undergoing medical examinations as part of a voluntary, reasonably designed wellness program in order to earn a reward or avoid a penalty. (If no medical information is sought in connection with a wellness program, the rules do not apply.) The ADA and GINA rules, which apply as of the first day of the first plan year that begins on or after January 1, 2017, address various aspects of wellness programs.

    Voluntary. In order for an employee’s participation to be considered voluntary, the employer:
    • May not require participation
    • May not deny access to health insurance or benefits to employees who do not participate
    • May not engage in retaliation, interference, coercion, intimidation or threats against an employee who does not participate or who fails to achieve certain health outcomes
    • Must provide a notice explaining the medication information sought, how it will be used, who will receive it, and the restrictions on disclosure
    • Must comply with the incentive limits set forth in the rule
    Reasonably Designed. The health program in question must be reasonably designed to promote health or prevent disease. To meet this standard, the program must:
    • Have a reasonable chance or improving the health of or preventing disease in participating individuals
    • Not be overly burdensome, a subterfuge for violating the ADA, or highly suspect in the method chosen to promote health or prevent disease.
    Incentive Limits. The incentives to the employee are subject to the following limits under the ADA rule:
    • If the employee is required to enroll in a particular health plan to participate in the wellness program, the incentive cannot exceed 30% of the total cost of the self-only coverage under the plan.
    • If the employer offers only one health plan, but the employee is not required to enroll in the plan to participate in the wellness program, the incentive cannot exceed 30% of the total cost of the self-only coverage under the plan.
    • If the employer offers more than one self-only health plan and the employee may choose the plan, the incentive cannot exceed 30% of the lowest cost major medical self-only plan offered.
    • If the employer does not offer a health plan, the incentive cannot exceed 30% of the total cost to a 40-year-old non-smoker purchasing self-only coverage under the second lowest cost Silver Plan available on the state or federal Healthcare Exchange in the location where the employer has its principal place of business.
    Under the GINA rule, the limits on the inducements that may be provided to the employee’s spouse are the same as for the employee.

    Confidentiality. Under ADA and GINA rules already in effect, the employer must maintain the confidentiality of the employee’s and spouse’s medical information. The new rules add that an employer:
    • May receive only aggregate information from the wellness program, and not individual information except as necessary to administer the plan
    • May not require an employee to agree to the disclosure of medical information or waive the confidentiality provisions, except as permitted by the ADA to carry out specific activities related to the wellness program
    The EEOC has also provided Small Business Fact Sheets on the rules under the ADA and GINA, summarizing the provisions of the rules, along with Question and Answer documents for the ADA and GINA rules.