EEOC Rules on Workplace Wellness

May 18, 2016

pic-health-wellnessOn May 16, the U.S. Equal Employment Opportunity Commission (EEOC) released final rules to clarify how the American with Disabilities Act (ADA) and the Genetic Information Nondiscrimation Act (GINA) apply to employer wellness programs. A notice of proposed rulemaking (NPRM) was previously issued on Oct. 30, 2015. ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members, including spouses. Both laws, however, allow employers to ask health-related questions and conduct medical examinations, such as biometric screenings to determine risk factors, if the employer is providing health or genetic services as part of a voluntary wellness program.

The final rule states employers may provide limited financial and other inducements (incentives) in exchange for an employee’s spouse providing information about his or her current or past health status as part of a wellness program, whether or not the program is part of a group health plan.

Specifically, the two EEOC rules, which take effect in 2017, provide guidance to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA). The rules permit wellness programs to operate consistently with their stated purpose of improving employee health, while including protections for employees against discrimination. Both rules seek to ensure wellness programs actually promote good health and are not just used to collect or sell sensitive medical information about employees and family members or to impermissibly shift health insurance costs to them.

The final ADA rule allows voluntary wellness programs that include medical examinations or ask questions about employees’ health to offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule says the maximum incentive that can be provided to an employee’s spouse also is limited to 30 percent of employee self-only coverage. Employers are required to give employees participating in a wellness program notice about what information will be collected, who will have access to it and why, disclosure limits as well as how the information will stay confidential under the ADA, whereas GINA requires “statutory notice and consent provisions for health and genetic services provided to employees and their family members.”

However, the ADA prohibits an employer from denying access to a particular health plan because an employee does not answer disability-related questions or undergo medical examinations. The rules also prohibit the use of incentives to gain the health information of employees’ children, or the genetic information of an employee, an employee’s spouse and an employee’s children.

While the final rule does clarify for employers where their wellness plan incentives stand with respect to ADA and GINA compliance, NSBA is still reviewing the final rule to determine what the overall rule means to employers trying to improve the overall wellness of their employees and keep their health care costs down. The final rules cover a wide variety of issues, from the financial incentives to how the medical information gathered must be protected and NSBA is evaluating whether previous concerns from employers and individuals have been addressed.

The EEOC has posted question-and-answer documents that address the ADA rule and the GINA rule, and fact sheets for small businesses regarding the ADA rule and the GINA rule.