Why it matters

In final rules issued by the Equal Employment Opportunity Commission (EEOC), the agency described 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 workers and their spouses. Wellness programs that are part of a group health plan and 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 pursuant to the final ADA rule; 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 under the final GINA rule. Employers are prohibited from offering incentives in exchange for current or past health status information of employees' children or in exchange for specified genetic information of an employee, spouse, or child, and information from wellness programs may be disclosed to employers only in aggregate terms, the EEOC said. Set to take effect in 2017, the final rules apply to all workplace wellness programs.

Detailed discussion

Intended to provide greater certainty to employers about the application of the Americans with Disabilities Act (ADA) and the Genetic Information Nondisclosure Act (GINA) to workplace wellness programs consistent with the Health Insurance Portability and Accountability Act (HIPAA), the Equal Employment Opportunity Commission (EEOC) published a pair of final rules, one for each statute, as well as additional guidance for small businesses and Q and A documents.

An employer-sponsored wellness program is permissible if it is "reasonably designed to promote health or prevent disease" and employee participation is "voluntary," meaning employers do not require any employees to participate, do not deny workers who elect not to participate access to health coverage or prohibit the choice of certain plans, and do not "take any other adverse action or retaliation against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes."

The final ADA rule establishes that wellness programs that are part of a group health plan and 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 (including the employee's and employer's contribution). Employers must give participating employees a notice about what information will be collected as part of the program, with whom it will be shared, and for what purpose, as well as how the information will be kept confidential and the limits placed on disclosure.

Similarly, 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. Incentives in exchange for the current or past health status information of employees' children or in exchange for specified genetic information of an employee, spouse, or children are not permitted. GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members, the EEOC noted.

If the wellness programs allows both the employee and the spouse to participate, the 30 percent threshold applies to the employee and spouse individually. For example, if an employee is enrolled in health insurance through the employer with a self-only option for $6,000, the maximum incentive the employer can offer for a wellness program would be $1,800 for the employee and $1,800 for the spouse.

Smoking cessation programs received specific attention from the EEOC in the final rules. Programs that merely ask employees whether they smoke are treated differently than programs that require workers to be tested for nicotine use. Those that ask about use are not considered employee health programs that include disability-related inquiries or medical examinations and, therefore, the 30 percent incentive limit does not apply. Instead, the employer may offer an incentive up to 50 percent of the costs of self-only coverage, in line with HIPAA's regulations. A program that includes biometric screening or other medical procedures to test for the presence of nicotine is stuck under the 30 percent incentive cap, however.

Both rules require that information from wellness programs may be disclosed to employers only in aggregate form and prohibit employers from requiring employees or family members to agree to the sale, exchange, transfer, or other disclosure of their information in order to participate in a wellness program or receive an incentive.

The final rules—both of which take effect on the first day of the plan year that begins on or after January 1, 2017—apply to all workplace wellness programs, the EEOC said, including those in which employees or their family members may participate without enrolling in a particular health plan.

To read the final ADA rule, click here.

To read the final GINA rule, click here.