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On May 16, the U.S. Equal Employment Opportunity Commission ("EEOC") issued final regulations that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. The two regulations 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, as amended by the Affordable Care Act ("ACA").

The regulations permit wellness programs to operate consistent with their stated purpose of improving employee health, while including protections for employees against discrimination.  The regulations are available in the Federal Register at:

https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act, and

https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act.

The 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. Last year, EEOC issued proposed regulations that addressed whether offering an incentive for employees or their family members to provide health information as part of a wellness program would render the program involuntary.  

Wellness Programs must be voluntary

The final regulations define what it means for a wellness program to be "voluntary." The final regulations provide the following factors necessary to demonstrate that the wellness program involving the use of HRAs or biometric screening is voluntary.  The employer cannot:

  1. Require employees to participate.
  2. Deny coverage under any of its group health plans (or particular benefit packages within those plans) or limit the extent of coverage (except for permitted incentives) to employees who do not participate.
  3. Take any adverse employment action against an employee who does not participate.

Limits on Incentives

The final ADA regulations provide that wellness programs that are part of a group health plan and that ask questions about employees' health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA regulations provides that 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. No incentives are 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.

If participating in the employer's group health plan is not a condition of participating in the wellness program, the inducement cannot exceed 30% of:

  1. The total cost of self-only coverage under the employer's group health plan (where offered), if the employer only offers one plan.
  2. The total cost of the lowest cost self-only coverage offered by the employer, if  the employer offers multiple plans (e.g., two tiers of coverage).
  3. The cost of self-only coverage available to a 40-year old, non-smoker under the second lowest cost Silver Plan available on the exchange for the location the employer identifies as its principal place of business, if the employer offers multiple plans (e.g., two tiers of coverage).

In addition, the HIPAA/ACA regulations provide that a wellness program can offer an incentive of up to 50 percent of the cost of employee-only coverage (i.e., 50 percent of the individual COBRA rate) for participating in a tobacco-related wellness program. The final regulations provide that a participatory wellness program that merely asks employees whether or not they use tobacco (or whether or not they ceased using tobacco upon completion of a smoking cessation program) can offer a 50 percent incentive as under the HIPAA/ACA regulations. However, if tobacco-related incentives are tied to the results of a biometric screening or other medical examination that tests for the presence of nicotine or tobacco, that wellness program is subject to the EEOC's 30 percent aggregate incentive limitation discussed above.

Effective Date

The portions of these final ADA regulations relating to a notice requirement and the 30 percent limit on incentives for participation in a wellness plan are effective for plan years beginning on and after January 1, 2017. However, the EEOC's position is that the remainder of these final regulations merely clarify and reinforce existing statutory obligations under the ADA, and apply both before and after the date the final regulations were issued.

Program Design

Both regulations also seek to ensure that 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 ADA and GINA regulations require wellness programs to be reasonably designed to promote health and prevent disease.

Protecting Confidentiality

The two regulations also make clear that the ADA and GINA provide important protections for safeguarding health information. The ADA and GINA regulations state that information from wellness programs may be disclosed to employers only in aggregate terms.

The ADA regulations rule requires that employers give participating employees a notice that tells them what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential. GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members.

Both regulations 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.

The interpretive guidance published along with the final ADA regulations and the preamble to the GINA final regulations identify some best practices for ensuring confidentiality, such as adopting and communicating clear policies, training employees who handle confidential information, encrypting health information, and providing prompt notification of employees and their family members if breaches occur. 

 

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