United States: EEOC Releases Final Wellness Program Regulations Related To The Genetic Information Nondiscrimination Act And The Americans With Disabilities Act

SUMMARY

The US Equal Employment Opportunity Commission (EEOC) recently released final wellness plan regulations providing guidance on how employer wellness programs may comply with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The EEOC made it very clear that compliance with the HIPAA nondiscrimination rules does not necessarily mean that an employer is in compliance with the final wellness program rules under the ADA or GINA.

IN DEPTH

The US Equal Employment Opportunity Commission (EEOC) recently released final wellness plan regulations providing guidance on how employer wellness programs may comply with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities. Title II of GINA protects employees from employment discrimination based on their genetic information, including the health status of workers' families. The EEOC made it very clear that compliance with the nondiscrimination rules under the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (ACA) (HIPAA Nondiscrimination Rules), does not necessarily mean that an employer is in compliance with the final wellness program rules under the ADA or GINA.

ADA Final Regulations

The ADA final rule explains how employers may use incentives to encourage employees to participate in wellness programs that make disability-related inquiries or require participants to undergo medical exams, including through medical questionnaires, health risk assessments (HRAs) and biometric screening. Wellness programs that do not include disability-related inquiries or require participants to undergo medical exams would not be subject to the ADA final rule. For example, a wellness program that simply requires employees to engage in a certain activity (such as attending a nutrition or weight loss class, or walking a certain amount every week) in order to earn an incentive would not be subject to the ADA final rule. However, the ADA requires employers to provide reasonable accommodations that allow employees with disabilities to participate in such programs. Like GINA, the EEOC's rules under the ADA apply to any wellness program offered by an employer (whether or not through a group health plan). Wellness programs subject to the ADA must meet the following requirements:

  • Wellness programs must be reasonably designed, similar to HIPAA's requirement for health-contingent programs. However, the ADA final rule also applies to participatory-only programs. A reasonably designed wellness program generally must have a reasonable chance of preventing disease in, or improving the health of, participating employees, without being overly burdensome, highly suspect in its chosen method of promoting health or preventing disease, or a subterfuge for violating the ADA. For instance, imposing penalties on an individual solely for failure to achieve a certain health outcome "would, in many instances, discriminate against individuals based on disability." Wellness programs that provide measurements, tests, screenings, or collections of health information "without providing results, follow-up information, or advice designed to improve the health of participating employees" are not reasonably designed, unless the collected information is used to design a program addressing at least a subset of the conditions identified.
  • Wellness programs must be voluntary, i.e.,

    • Employers may not require employees to participate;
    • Employers may not deny coverage under a group health plan to employees who do not participate, or limit the extent of benefits (except the limited permitted incentives described below);
    • Employers may not take adverse action against, retaliate against, or coerce employees who do not participate; and
    • Employers must satisfy notice requirements (described below).
  • Employers must provide a notice written in language that is reasonably likely to be understood by the employee providing the medical information and that clearly explains what medical information will be obtained, how it will be used, who will receive it, the restrictions on its disclosure, and how the covered entity will prevent improper disclosure. The EEOC will provide a sample notice on its website by June 17, 2016.
  • An ADA "covered entity" is an employer, employment agency, labor organization or joint labor management committee. Information that is obtained through an employee health program may only be provided to an ADA covered entity in the aggregate, in ways that do not disclose, or are not reasonably likely to disclose, the identity of any employee, except as necessary to administer a health plan. Employers may not require employees to agree to sell, exchange, share, transfer, or otherwise disclose medical information (with limited exceptions) or to waive confidentiality provisions in exchange for participating in a wellness program or earning incentives.
  • The maximum share of the inducement attributable to an employee's participation in an employer-sponsored wellness program varies depending on the facts and circumstances.

    • Amount of incentive if one plan: If a wellness program is open only to employees enrolled in a particular plan, then the maximum allowable incentive an employer can offer is 30 percent of the total cost for self-only coverage of the plan in which the employee is enrolled. For example, if the total cost for self-only coverage for the plan in which the employee is enrolled is $6,000 annually, the employer can reward the employee up to $1,800 for participating in the wellness program and/or for achieving certain health outcomes (or penalize the employee up to the same amount for not participating and/or failing to meet health outcomes). The employer also could offer the same level of incentive if it offered only one group health plan but allowed any employee to participate in the wellness program regardless of whether he or she is enrolled in the health plan.
    • Amount of incentive if more than one plan: Where an employer offers more than one group health plan, but participation in a wellness program is open to all employees regardless of whether they are enrolled in a plan, the employer may offer a maximum incentive of 30 percent of the lowest cost major medical self-only plan it offers. For example, if an employer offers three different major medical group health plans ranging in cost for self-only coverage from $5,000 to $8,000, and wants to offer an incentive to employees for participating in a wellness program and completing an HRA, the employer could offer a maximum incentive of $1,500 (30 percent of its lowest cost plan).
    • Amount of incentive if no plan: If an employer does not offer health insurance but wants to offer an incentive for employees to complete an HRA or to have annual tests that check their glucose and cholesterol levels, the employer could offer an incentive of up to 30 percent of the cost that a 40-year-old non-smoker would pay for self-only coverage under the second lowest cost Silver Plan on the state or federal health care Exchange in the location that the employer identifies as its principal place of business. If such a plan would cost an employee $4,000, the employer could offer a maximum incentive of $1,200. The second lowest cost Silver Plan is used as a benchmark for determining an individual's entitlement to a premium tax credit for purchasing health insurance on the Exchange.
    • Amount of incentive for spouses: The maximum incentive for spouses to provide information about themselves in an HRA is also capped at 30 percent of the total cost of the employee's self-only coverage. This is a change from the more complex proposed rule, which would have allowed inducement attributable to the spouse's completion of an HRA at 30 percent of the cost of enrolled coverage less 30 percent of the cost of self-only coverage.
  • The final ADA rule makes a distinction between smoking cessation programs that require employees to be tested for nicotine use, and programs that merely ask employees if they use tobacco. A wellness program that merely asks employees whether or not they use tobacco (or whether they ceased using tobacco by the end of the program) is not a wellness program that asks disability-related questions. Therefore, the rule's 30 percent incentive limit does not apply, and an employer can offer an incentive up to 50 percent of the cost of self-only coverage, consistent with the HIPAA Nondiscrimination Rules. However, where an employer requires any biometric screening or other medical procedure that tests for the presence of nicotine or tobacco, the ADA rule's 30 percent incentive limit applies.
  • In addition to compliance with the final rule, covered entities must still comply with other employment nondiscrimination laws (for example, discrimination on the basis of race, sex, national origin, age or any other grounds that are statutorily prohibited). If a wellness program requirement (for instance, achieving a certain blood pressure) disproportionately affects individuals based on some protected characteristic, employers may be able to avoid disparate impact by providing a reasonable alternative standard.
  • In its final ADA rule, the EEOC declared its authority to interpret the ADA's statutory "bona fide benefit plan" safe harbor. The ADA safe harbor asserts that an insurer or other entity that administers benefit plans is not prohibited from "establishing, sponsoring, observing or administering the terms of a bona fide benefit plan based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law." The EEOC interprets this safe harbor to not apply to an employer's decision to incentivize or penalize individuals in connection with wellness programs including disability-related inquiries or medical examinations. However, courts in Seff v. Broward County and more recently EEOC v. Flambeau, Inc., held that the ADA safe harbor applied to employer wellness plans. The EEOC's appeal in the Flambeau case is currently pending with the US Court of Appeals for the Seventh Circuit.

GINA Final Regulations

The EEOC clarified that employers may provide limited incentives to an employee whose spouse voluntarily provides current or past health status information on an HRA as part of a wellness program. GINA generally restricts an employer's ability to acquire or disclose genetic information about its employees and prohibits employers from using genetic information to make employment-related decisions. GINA defines "genetic information" as including medical information regarding a "family member," which includes an individual's spouse. For plan years beginning on or after January 1, 2017, the following key provisions of the final GINA regulations apply:

  • The final GINA regulations apply to all employer-sponsored wellness programs that request genetic information, regardless of whether they are related to or part of a group health plan.
  • One of the narrow exceptions to GINA's prohibition on requesting, requiring or purchasing genetic information applies when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a voluntary wellness program.
  • GINA clearly prohibits wellness programs from requiring employees to provide their genetic information as a condition of receiving incentives, but does not prohibit an employee's spouse from providing information on his or her current or past health status. The spouse must provide prior knowing, voluntary and written authorization when providing his or her genetic information, and the authorization form must describe the restrictions on disclosure and other confidentiality protections of genetic information. Wellness programs offering de minimis inducements are not excluded from this authorization requirement.
  • Any health or genetic services an employer offers must be reasonably designed to promote health or prevent disease. This means that the services must have a reasonable chance of improving the health of, or preventing disease in, participating individuals. Programs that only consist of a measurement, test, screening or collection of health-related information without providing any results, follow-up information or advice to improve the participant's health are not considered to be reasonably designed to promote health or prevent disease, unless the collected information helps design a program that addresses at least some of the conditions identified.
  • An employer may offer, as part of its health plan, a limited incentive (in the form of a reward or penalty) to an employee whose spouse (1) is covered under the employee's health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status. Information about current or past health status usually is provided as part of an HRA, which may include a questionnaire or medical examination, such as a blood pressure test or blood test to detect high cholesterol or high glucose levels. Employers may not deny access to group health plan coverage solely because a spouse has refused to provide information about his or her manifestation of disease or disorder to an employer wellness program.
  • An employer may not provide financial inducements in return for HRA information about an employee's children, regardless of whether the children are adults, minors, biological or adopted. The rationale for this prohibition is that the possibility that an employee may be discriminated against based on genetic information is greater when an employer has access to information about the health status of the employee's children. The final GINA rule reiterates that employers may offer children the opportunity to participate in wellness programs, as long as they are not offered inducements in exchange for information about their current health status or about their genetic information.
  • Information regarding tobacco use is not considered genetic information under the final GINA regulations. Thus, a wellness program is not requesting genetic information if it asks the spouse of an employee about tobacco use, as this is not information about the spouse's manifestation of a disease or disorder.
  • The final GINA rule affirms that when an employer offers its employees incentives in exchange for the completion of an HRA, the HRA must comply with written disclosure requirements. The GINA rule also provides best practices for ensuring confidentiality, including establishing clear policies, training staff members who handle confidential information, encryption of information stored electronically, and prompt reporting of data breaches. These best practices are also referenced in the ADA final rule.
  • Covered entities may not condition participation in an employer-sponsored wellness program or a financial incentive on an employee, employee's spouse or other covered dependent agreeing to the sale, exchange, sharing, transfer or other disclosure of genetic information (with limited exception) or waiving certain protections.

Employers should review their wellness program design in light of these final rules, while also ensuring compliance with previously existing rules applicable to wellness programs under HIPAA, the ACA and other federal discrimination laws. Please contact one of the authors or your employee benefits contact for further information.

EEOC Releases Final Wellness Program Regulations Related To The Genetic Information Nondiscrimination Act And The Americans With Disabilities Act

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
Brown Smith Wallace
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
Brown Smith Wallace
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions