EEOC Issues New Rules on Employer Wellness Programs

Many employers offer wellness programs as a benefit for their employees with about half of organizations employing 50 or more workers offering a wellness program in recent years. Wellness programs refer to health promotion and disease prevention programs offered to employees as part of a group health plan or separately as a benefit of employment. Employers have embraced these programs in the hopes of improving employee health and well-being, lowering medical costs, and increasing productivity of their workers. Wellness programs frequently screen employees for health risks through health risk assessments and other examinations. Although wellness programs can greatly improve employee health and productivity, the programs must comply with federal employment laws, such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

Federal Laws Protect Employees’ Health Information & Confidentiality

The ADA and GINA generally prohibit employers from gathering and using information about their employees’ or their families’ health conditions. The ADA prohibits employers from discriminating against individuals on the basis of a disability and generally restricts employers from gathering medical information from applicants and employees. GINA protects individuals from genetic discrimination in health insurance and employment. The laws do allow employers to ask questions about employees’ health as part of a voluntary wellness program. Wellness program requirements in HIPAA and the Affordable Care Act apply ONLY to wellness programs that are part of a group health plan. However, this new final rule applies to ALL wellness programs that include disability-related inquiries or medical exams. Some employers choose to offer an incentive to encourage employees to participate in the wellness program that require the employee to provide medical information or health screenings to the employer. The Equal Employment Opportunity Commission raised a concern that offering an incentive to employees for providing their health information for a wellness program could then make the program involuntary.

New Rules about Wellness Programs in 2017

In response to the EEOC’s concerns, the ADA and GINA provided final rules stating wellness programs that are part of a group health plan and ask questions about the health of employees or include medical exams can only offer up to 30% of the cost of self-only coverage as an incentive. Likewise, the incentive for a spouse’s participation can’t exceed 30% of self-coverage. The ADA also requires employers to give notice to workers about what information will be collected for the wellness program, with whom it will be shared and why, and how the information will be kept confidential. These rules go into effect in 2017. These new rules prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer or other disclosure of their health information to participate in a wellness program or to receive an incentive. So long as the wellness program is available to all similarly-situated individuals and incentives are made available regardless of a health factor, the program does not violate the Affordable Care Act or HIPAA.

Design Your Wellness Program Policy

A wellness program policy should be clear. Employees who handle confidential information should be properly trained. Employees’ health information should be properly safeguarded. Incentives to join the program must comply with the rules set forth by the ADA and GINA as enforced by the EEOC and in accordance with HIPAA mandates. To develop an effective and allowable wellness policy, contact one of our employment law attorneys today.

2018-01-19T10:02:23+00:00May 18th, 2016|Labor Relations|0 Comments