The Equal Employment Opportunity Commission (EEOC) issued final regulations on the impact of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) on wellness programs offered by employers that request health information from employees and their spouses. These two regulations, which will go into effect January 1, 2017, provide much needed clarity to how workplace wellness programs can comply with the ADA, GINA, and the HIPAA, as amended by the Affordable Care Act (ACA).
In order to maintain a healthier workforce and control health plan costs, many employers offer workplace wellness programs intended to encourage healthier lifestyles, prevent disease, or provide early detection and intervention for chronic conditions. These programs sometimes use medical questionnaires (health risk assessments) and biometric screenings to determine an employee’s health risk factors, such as body weight, cholesterol, blood glucose, and blood pressure levels. Programs frequently offer financial and other incentives for employees to participate or to achieve certain health outcomes.
A wellness program must be reasonably designed to promote health or prevent disease. This means that the program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals. A program is not reasonably designed to promote health or prevent disease if it exists merely to shift costs from an employer to employees based on their health; is used by the employer only to predict its future health costs; or imposes unreasonably intrusive procedures, an overly burdensome amount of time for participation, or significant costs related to medical exams on employees.
The ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members, including spouses, unless the employer is providing health or genetic services as part of a voluntary wellness program. In a series of cases over the last two years, the EEOC has challenged the voluntary nature of such plans when the financial incentives to participate were large, albeit within the limitations imposed under the ACA. Last year, the EEOC issued proposed rules that addressed whether offering an incentive for employees or their family members to provide health information as part of a wellness program would render the program involuntary.
The final ADA rule provides that wellness programs that ask questions about employees’ health or include medical examinations may offer incentives of not more than 30 percent of the total cost of self-only coverage. The final GINA regulation 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, the same incentive allowed for the employee. No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee’s spouse, and an employee’s children.
Both regulations make clear that the ADA and GINA provide important protections for safeguarding health information. The ADA and GINA rules state that information from wellness programs may be disclosed to employers only in aggregate terms. The ADA regulation requires that employers give participating employees a notice that tells them what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential. GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members.
These regulations provide clarity to an area that, until now, has been fraught with uncertainty. With this clarity, employers should review their wellness programs for compliance with the regulations. For employers without a wellness program, this removes much of the legal uncertainty and provides a guide to establishing a program.
The St. Louis employment attorneys at McMahon Berger have been representing and counseling employers across the country in labor and employment matters, including the protection of trade secrets, for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.