The U.S. Equal Employment Opportunity Commission issued two final rules May 16, 2016 that guide employers on the manner with which their wellness programs that ask health-related questions and/or require participants to undergo medical examinations can incentivize employee participation, while remaining in compliance with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA).
Title I of the ADA prohibits discrimination against individuals on the basis of disability with regard to, among other things, compensation and fringe benefits. It also prohibits employers from making disability-related inquiries or requiring medical examinations, subject to exceptions. One of these exceptions is voluntary employee health programs, which includes workplace wellness programs. Title II of the GINA prohibits the use of genetic information in making employment decisions.
Both rules allow employers to continue providing wellness programs that offer financial incentives so long as the wellness plans are “reasonably designed to promote health or prevent disease” and are not “a subterfuge for violating” the ADA, GINA or other employment discrimination laws.
Specifically, the ADA rule states that wellness programs which ask employees to respond to health-related questions and/or undergo medical examinations may offer incentives up to 30 percent of the total cost of self-only coverage. Similarly, the GINA rule states 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. The rules however prohibit incentivizing the exchange of genetic information or health information of employees’ children.
The ADA and GINA rules also stress the importance of protecting the confidentiality of employee health information. Under the ADA rule, employers are required to give participants notice telling them what information will be collected by the wellness program, with whom it will be shared and for what purpose, the limits on disclosure, and the method by which the information will be kept confidential. The GINA rule includes statutory notice and consent provisions for health and genetic services. Both rules make clear that the information obtained through wellness programs’ health-related questions and medical examinations may only be reported back to the employer in the aggregate. This means employers may not request specific, individual results from health examinations from their wellness plan coordinators.
Finally, employers should be careful to avoid overlooking the rules applicable to wellness programs under the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA), which impose additional obligations on wellness programs (a number of which do not align with the new ADA and GINA rules.