Background

On May 16, 2016, the Equal Employment Opportunity Commission (EEOC) issued final rules governing the interaction between employer-sponsored wellness programs and both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). Provisions in the final regulations that relate to wellness programs under both the ADA and GINA, particularly the incentive limits and new notice requirements, will apply to all employer-sponsored, wellness programs as of the first plan year starting on or after January 1, 2017. 

The ADA rules address the incentives used to encourage employees to participate in wellness programs that ask disability-related questions and/or require medical exams. The GINA rules address inducements linked to requests for information about the health of the employee’s spouse as part of a Health Risk Assessment (HRA) or medical exam under a wellness program. The final regulations also require that employers that offer wellness programs must provide a notice explaining what medical information will be obtained, how it will be used and who will receive it. 

Changes and How to Comply

While the EEOC’s final rules address compliance with the ADA and GINA, employer-sponsored wellness programs are also subject to other federal laws, including ERISA and HIPAA/PPACA. Wellness programs were often designed to comply with the HIPAA/PPACA rules already, so many employers will need to make changes to their programs to comply with the EEOC’s final rules. 

A path to compliance might include the following steps:

1. Identify disability-related inquiries or required medical exams in which the ADA would apply, as well as inquiries about the manifestation of disease in an employee or spouse to which GINA would apply (such as HRAs and biometric screenings).
2. Determine whether wellness programs comply with the ADA and GINA:
   • Incentives. Employee and spouse incentives may not exceed 30% of the cost of employee-only coverage for each where the ADA or GINA applies. Note that the ACA allows 30% of employee AND spouse premium; the ADA does not under this new EEOC rule. The ACA allows employers to go up to 50% for tobacco cessation incentives, but the ADA now prohibits this additional 20% incentive if a medical exam is involved (eg a test for nicotine). 50% tobacco incentives would still be allowed if based on employee attestations only and other ACA guidelines were met.
   • Reasonable accommodation. Wellness programs must offer reasonable accommodations to enable disabled employees to participate when appropriate, consistent with ADA general guidelines for all wellness programs.
   • Reasonableness in design. Wellness programs may not impose overly burdensome time requirements, unreasonably intrusive procedures or significant costs for medical exams.
   • Voluntary status. Wellness programs may not require participation or deny health coverage, retaliate, coerce or take any other adverse action for failing to participate or to provide access to medical information. 
   • Confidentiality. Collected medical information must be maintained on separate forms and in separate files, and be treated as confidential medical records. Programs may provide medical information to employers only in aggregate form that does not identify any individuals. Programs may not require participants to agree to the sale, exchange or other disclosure of medical information, or require a waiver of confidentiality protections to participate or receive an incentive.
   • Notice/authorization. Sponsors should revise program forms, communications and other administrative documents to reflect notice and authorization requirements, including use of the same HRA for both the employee and the employee’s spouse. Questions about family medical history and other genetic information must be clearly identified, and the notice must state that answering the questions is not necessary to receive an incentive. The model notice is available at https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm, and a brief question-and-answer document describing the notice requirement and how to use the sample notice is available at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-notice.cfm
3. Eliminate any wellness program element that provides an incentive for information about a child’s manifestation of disease or disorder (e.g., child’s HRA information).
4. Check out this chart from our friends at E is for ERISA to make sure your incentives comply, or just This email address is being protected from spambots. You need JavaScript enabled to view it. with any questions.