Earlier this year, the Equal Employment Opportunities Commission (EEOC) issued two rules providing additional clarity for employers as to whether they can collect confidential health information from their employees and spouses in connection with employer-sponsored wellness programs:
- The first rule permits employers to obtain health information regarding an employee’s spouse in connection with the offering of financial and other incentives as long as the information is not used to discriminate against an employee.
- The second rule permits employers to offer limited financial and other incentives for wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations (such as tests to detect high blood pressure, high cholesterol or diabetes).
Under each of the rules, the employer wellness programs must be reasonably designed to promote health and prevent disease, and the employer and its wellness program provider must also make efforts to ensure that the medical information they collect is kept confidential. Employers should note that participation in the wellness program must be completely voluntary. In other words, employers cannot deny or limit employees’ health coverage for nonparticipation, may not retaliate against or interfere with any employee who does not to participate and may not coerce, threaten, intimidate or harass anyone into participating.
An employer should further note that, while it may use aggregate information collected by the wellness program provider to design a program based on identified health risks in the workplace, the wellness program provider may never disclose an employee’s personally identifiable health information to the employer, except as necessary to respond to a request from the employee for a reasonable accommodation needed to participate in the wellness program or as expressly permitted by law. Similarly, an employee’s personally identifiable medical information cannot be provided to the employee’s supervisors or managers and may never be used to make decisions regarding the employee’s employment.
To provide additional guidance for employers, on June 16, 2016, the EEOC posted a sample notice to assist employers who have wellness programs in complying with their new obligations. Further discussion from the EEOC is also available online.
The EEOC’s recent rules demonstrate the Commission’s acknowledgement of the potential benefits of employer-sponsored wellness programs as well as the Commission’s willingness to work with employers who want to collect health data that may enable them to promote employee health and well-being and create better workplaces. Assuming that the employer and its wellness program provider comply with the obligations set forth by the EEOC and its regulations, employers now have approved means for gathering confidential health information on employees and their spouses to promote health and prevent disease.