The Issue - "Voluntary" is Defined, but Questions Remain
The ADA allows employee medical exams/inquiries if part of a "voluntary" wellness program or a "bona fide benefit plan." The regulations provide clarity on what is a "voluntary" wellness plan, ignore the exemption for bona fide benefit plans and do not address whether incentives can be offered to an employee's family members under GINA. And, the rules differ from the HIPAA/ACA wellness rules (despite the EEOC's stated intent to harmonize with other laws).
Incentives Conflict with HIPAA/ACA
Financial incentives are allowed, but cannot exceed 30% of the employee's cost of health insurance (which includes the employer share) for wellness programs that make medical inquiries and are group health plans. This conflicts with HIPAA/ACA, which does not impose limits on participatory programs and the limit for health-contingent programs is based on the total cost of coverage. Programs that do not request medical information or are not group health plans have no limit on incentives, but the EEOC is requesting comments on this issue.
Smoking Cessation
Some good news in the regulations: asking whether or not an employee smokes or has quit smoking is not a medical inquiry under the ADA. Thus, non-smoking rewards are not subject to the limits above, but could be subject to other laws such as HIPAA or Maine (or other state) Smokers' Rights Laws.
Another Notice
Wellness programs that are part of a group health plan must provide a notice to employees informing them (1) what information will be obtained, (2) how the information will be used, (3) who will receive the information, and (4) how the information will be kept confidential. This is in addition to notices required under any other laws, such as HIPAA and GINA.
Bottom Line: Employers must be careful when implementing wellness programs.
