The United States Equal Employment Opportunity Commission (“EEOC”) issued final rules yesterday establishing how employer-sponsored wellness programs can comply with the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), without discriminating against employees or running afoul of the Health Insurance Portability and Accountability Act (“HIPAA”).
In today’s health-driven world, many employers are encouraging their employees to participate in wellness programs to promote good health and healthier lifestyles. Ultimately, employers aim for a healthier and happier workforce that will lead to greater productivity and less needed time off for sick leave. Often, employers will offer employees financial incentives for participating in such wellness programs and achieving goal-oriented results. As part of such programs, though, employees and their family members are typically asked to provide certain protected medical information to help assess their individual health risk factors, which in turn raises potential conflicts with employee privacy rights under the ADA and GINA.
The EEOC’s new wellness program rules provide clarity on this issue. Specifically, the new rules require employers to explain to participating employees what information will be collected from them in connection with a wellness plan, with whom and for what purpose such information will be shared, and what safeguards are in place to ensure that such information will be kept confidential. In addition, the final ADA rule permits employers to offer incentives of up to 30% of the total cost of self-only coverage if an employee participates in a wellness program that is part of a group health plan that requires information about the health conditions of an employee or his/her family members. The final GINA rule provides a similar cap equivalent to 30% of the total cost of self-only coverage if an employee’s spouse participates in the wellness program. However, neither the ADA nor GINA rules permit employers to offer incentives in exchange for the provision of current or past health information about employees’ children or for certain genetic information about an employee, his/her spouse and his/her children (including the results of certain genetic tests). The EEOC’s rules also prevent employers from discriminating against employees based upon the health information that they provide or, alternatively, from discriminating if employees choose not to participate in the offered wellness programs.
Along with these new rules, the EEOC conveniently published informative Q&A documents on its website, which are available at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm (ADA), and https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm (GINA). The EEOC’s wellness program rules, which will apply to all workplace wellness programs, will go into effect in 2017.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.