On May 16, 2016, the EEOC issued two final rules that describe how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to corporate wellness programs offered by employers. These two rules address incentives that employers may offer, as well as related confidentiality issues. How healthy is your company’s wellness program in light of these new rules?
How Do the ADA and GINA Apply to Corporate Wellness Programs?
The ADA and GINA generally prohibit employers from requesting, gathering, and using information about the health conditions of employees or their family members. But, both the ADA and GINA allow employers to ask health-related questions and conduct medical examinations if the employer is providing health or genetic services as part of a voluntary corporate wellness program. These new final rules offer long awaited guidance to employers on implementing wellness programs in a way that is compliant with the ADA and GINA.
The final ADA rule provides that wellness programs that are part of a group health plan and (1) ask questions about employees’ health or (2) include medical examinations, may offer incentives up to 30% of the total cost of self-only coverage.
The final GINA rule provides that wellness programs may offer incentives up to 30% of the total cost of self-only coverage for an employee or an employee’s spouse to provide information about their health status.
Both rules also require that wellness programs be “reasonably designed to promote health or prevent disease,” indicating that the EEOC may scrutinize wellness programs to ensure that the programs are not only used to collect sensitive medical information or to impermissibly shift health insurance costs to employees.
The ADA final rule provides that to ensure that the wellness program is voluntary, an employer must provide covered employees with a notice that clearly explains what medical information will be obtained, the purposes for which that information will be used, and the restrictions on disclosure of the medical information. The EEOC has stated that it will provide a sample notice that complies with the rule on its website within 30 days.
In addition, under the ADA final rule, information obtained regarding medical information or history may only be provided to an employer in aggregate form that doesn’t disclose and isn’t reasonably likely to disclose individuals’ identities, except when such individual data is necessary to administer a health plan. Additionally, an employer generally cannot require employees to agree to the sale, transfer, or other disclosure of their medical information or to waive confidentiality protections as a condition of participation in the wellness plan or to receive an incentive.
As GINA already includes statutory notice and consent provisions, the EEOC did not add any further confidentiality requirements in the GINA final rule.
How Soon Do These Rules Apply?
These final rules go into effect on the first day of the first employer health plan year in 2017, and apply to all workplace wellness programs, including plans employees may participate in without enrolling in a particular health plan.