New EEOC Rules Affect Employer Wellness Programs

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a final rule to amend the regulations implementing Title I of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA) as they relate to employer wellness programs. The new rule clarifies the ability of employers to provide limited financial and other incentives in exchange for an employee voluntarily answering disability-related questions or taking medical examinations as part of a wellness program. 

Why are the ADA rules important? 

In addition to prohibiting disability discrimination, the ADA also generally restricts employers from obtaining medical information from applicants and employees. An exception exists where the request for medical information is part of a voluntary employee health program, including a wellness program. Prior to the new ADA rule, the EEOC had not defined the term “voluntary” or “health program” or explained whether a request for medical information is “voluntary” if the employer offers incentives to employees to encourage disclosure. The new ADA rule answers these questions.

What types of employee wellness programs are covered by the new ADA rules?

The new rule defines a health program to include wellness programs. This generally refers to health promotion and disease prevention programs, many of which ask employees to answer questions on a health risk assessment or undergo biometric screenings for risk factors. 

How can an employer ensure employee participation is voluntary as required by the new ADA rules?

Wellness programs can ask employees to answer health related questionnaires or participate in medical examinations as long as participation is purely voluntary. To be considered voluntary, an employer:

• May not require any employee to participate;
• May not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan;
• May not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health conditions.

Are employees entitled to notice of these new rules?

Yes. To ensure participation is voluntary, employers must provide a notice to employees that clearly explains what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure. A sample employee notice can be found at the EEOC website. If an employer already provides notice under the Health Insurance Portability and Accountability Act that includes the same information as set forth in this notice, a separate notice under these ADA rules is not required. If the employer invites the employee’s spouse to participate in the wellness program, a separate notice must be provided to the spouse. Both this new ADA rule and GINA requires that an employer who requests current or past health status information of an employee’s spouse with the above notice, must obtain written and voluntary authorization before the spouse completes a health risk assessment. 

Employees must receive this notice informing them of what information will be collected, who will receive it, how it will be used, and how it will be kept confidential before being asked to provide any health information as part of a covered wellness program and with sufficient advance notice to consider whether to voluntarily participate. 

Are there limits to the financial incentives an employer may offer to maintain the voluntary nature of the program?

Yes. To ensure the program is “voluntary”, an employer must comply with the limits placed on incentives that can be offered to encourage employees to participate in a wellness program or to achieve certain health outcomes. Generally, the maximum incentive an employer can offer is 30% of the total cost of self-only coverage of the plan in which the employee is enrolled if the wellness program is offered only to employees enrolled in a particular plan. The EEOC offers the following example:

If an employer offers three different major medical group health plans ranging in cost for self-only coverage from $5,000 to $8,000 and wants to offer an incentive to employees for participating in a wellness program and completing a health risk assessment, the employer could offer a maximum incentive of $1,500 (30% of its lowest cost plan).

If the employer offers more than one group health plan and participation in the wellness program is offered to employees regardless of which plan they select, the employer may offer a maximum incentive of 30% of the lowest-cost, major-medical, self-only plan it offers. 

What impact do the new ADA rules have on smoking cessation programs?

None. The rules distinguish between smoking cessation programs that simply ask the employee if she/he smokes and programs that require employees to be tested for nicotine use. According to the new rules, the latter is covered by the rules but the former is not. Therefore, a smoking cessation program that simply asks if the employee smokes is not subject to the new rules. On the other hand, a program that requires biometric screening or other tests for nicotine or tobacco is covered by the new rules.

Why are the new GINA rules important?

GINA prohibits employers from acquiring an employee’s genetic information (which includes family medical history) except in limited situations. One situation permits employers offering health or genetic services as part of a voluntary wellness program to request genetic information.  As with the new ADA rules, the GINA rules limit the amount of the incentive for the program to be considered voluntary. Specifically, the maximum total incentive for a spouse to provide information about his/her health status is also 30% of the total cost of (employee) self-only coverage.

Does the new rule apply retroactively to existing wellness programs? 

No. The rule applies to wellness programs as of the first day of the first plan year that begins on or after January 1, 2017.