Employers are getting a look at new final rules affecting how they structure wellness programs, rules that are meant to clear up conflicts among various federal laws but that also may make administration of wellness programs more challenging.
The Equal Employment Opportunity Commission’s (EEOC) new rules describe how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to employer wellness programs that request health information from employees and their spouses. The rules—one dealing with the ADA and the other with GINA—explain how workplace wellness programs can comply with the ADA and GINA consistent with provisions in the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA).
Both the new ADA and GINA rules go into effect in 2017 and apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan, according to a statement from the EEOC.
The new rules are meant to clear up how employer wellness programs can use medical questionnaires or health risk assessments and biometric screenings to determine an employee’s health risk factors, according to the EEOC statement. Some wellness programs offer financial and other incentives for employees to participate or to achieve certain health outcomes.
Response to court decisions
Jonathan R. Mook, an attorney with DiMuroGinsberg, PC, in Alexandria, Virginia, says in issuing the new rule, the EEOC is ignoring several federal district court decisions holding that the EEOC lacks statutory authority to regulate wellness programs.
“Putting aside questions as to its legality, the EEOC’s final rule provides some necessary clarity as to how an employer’s group health plan must be structured to be consistent with the ADA, as well as with the HIPAA requirements,” Mook says.
The rule makes clear certain requirements that employers should follow, Mook says:
- Do not require employees to participate in a wellness plan.
- Do not deny health insurance to employees who do not participate.
- Do not take any adverse action or retaliate against any employees who do not participate in a wellness plan or who do not achieve certain health outcomes.
- Provide reasonable accommodations to allow employees with disabilities to participate in wellness programs and to obtain any incentives offered for certain health outcomes.
Incentives and voluntary programs
Ryan Frazier, an attorney with Kirton McConkie in Salt Lake City, Utah, says the new rules are designed to “harmonize contradictory regulations relating to wellness programs” in the ACA, ADA, and GINA. The ADA has generally supported incentive-based wellness programs, but regulations related to the ADA and GINA have limited an employer’s ability to ask about certain health and disability information, including genetic information.
The EEOC statement points out that both the ADA and GINA generally prohibit employers from obtaining information about health conditions of employees and their family members, but the laws do allow employers to ask health-related questions and conduct medical examinations if the employer is providing health or genetic services as part of a voluntary wellness program. The new rules address whether offering an incentive to provide health information makes a program involuntary.
“The new rules amend these rules to authorize employers to offer incentives, including health insurance discounts, if employees and their spouses provide certain health information, including genetic information, in connection with a wellness program that is part of a group health plan,” Frazier says. He also notes that any information obtained must be used to promote employee health and not used to discriminate against the employee.
New challenges
Ashley Gillihan, an attorney with Alston & Bird LLP in Atlanta, says the new rules will make administration of wellness programs more challenging.
“First, the new ADA rules are more expansive than HIPAA’s wellness rules because the ADA rules apply to participation-based programs that make a disability-related inquiry or require a medical exam, whereas HIPAA’s rules do not,” Gillihan says. “Second, many programs today provide incentives to employees—such as lower premiums—in exchange for providing a spouse’s medical history. The new rules appear to allow such an incentive but only if the spouse provides the information. Obtaining the information from the spouse may prove challenging.”
The new rules place limits on incentives incorporated into wellness programs to make sure the programs remain voluntary. The new ADA rule provides 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, according to the EEOC. The final GINA rule 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.
Confidentiality requirements
In addition to understanding the limits on incentives, Jason R. Mau, an attorney with Greener Burke Shoemaker Oberrecht, P.A., in Boise, Idaho, reminds employers to pay careful attention to confidentiality of medical information.
Any employer “should pay careful attention to the new rules and continue to confidentially handle all medical information it receives for purposes of wellness programs and to ensure that it is not being used to discriminate against a qualified individual on the basis of disability,” Mau says.
The EEOC points out that the two rules state that information from wellness programs may be disclosed to employers only in aggregate terms. The ADA 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.
The EEOC says both 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.