The Equal Employment Opportunity Commission (EEOC) has published final rules clarifying the circumstances in which employers may offer incentives to employees for participation in workplace wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
Under the ADA, employers are prohibited from discriminating on the basis of disability. While the ADA also limits the circumstances in which employers may obtain health information from employees, it does establish that they are allowed to make limited inquiries into employee health or require medical examinations that are part of a voluntary employee health program. The newly published ADA rule defines the terms "voluntary" and "health program," and establishes the kinds of incentives employers may offer to employees who participate in these programs. To be voluntary, a program (a) may not require participation; (b) may not deny access to health insurance or benefits if an employee refuses to participate; (c) may not retaliate against, interfere with, coerce, intimidate or threaten any employee who does not participate or fails to achieve health outcomes; (d) must provide notice that explains the medical information that will be obtained, how it will be used, who will receive it; and (e) must comply with the rule's incentive limits. According to the EEOC's Fact Sheet on the ADA Wellness Final Rule, the incentive limits include:
- Where the employer requires the employee to be enrolled in a particular health plan in order to participate in the wellness program, the incentive to the employee may not exceed 30 percent of the total cost of the self-only version of the plan in which the employee is enrolled.
- Where the employer offers more than one self-only health plan, and does not require the employee to be enrolled in a particular health plan in order to participate in the wellness program, the incentive may not exceed 30 percent of the lowest cost major medical self-only plan the employer offers.
- Where the employer does not offer a health plan, and offers a wellness program that is open to employees, the incentive may not exceed 30 percent of the total cost to a 40-year-old non-smoker purchasing self-only coverage under the second lowest cost Silver Plan available on the state or federal Exchange in the location that the employer identifies as its principal place of business.
Under GINA, covered employers are prohibited from using employee genetic information in making employment decisions. While the law allows employers to acquire genetic information about employees and their family members as part of voluntary health or genetic services (including wellness programs), the new regulations clarify that an employer can offer a limited inducement to an employee whose spouse provides current or past health status information as part of a wellness program. According to the EEOC's Fact Sheet on the GINA Wellness Final Rule, these inducements include:
- Where the employer requires the employee and spouse to be enrolled in a particular group health plan in order to participate in the wellness program, the inducement to the spouse may not exceed 30 percent of the total cost of the self-only version of the plan in which the employee and spouse are enrolled.
- Where the employer offers only one self-only group health plan, and does not require the employee and spouse to be enrolled in that health plan in order to participate in the wellness program, the inducement may not exceed 30 percent of the cost of the self-only plan the employer offers.
- Where the employer offers more than one self-only group health plan, and does not require the employee and spouse to be enrolled in a particular health plan in order to participate in the wellness program, the inducement to the spouse may not exceed 30 percent of the lowest cost major medical self-only plan the employer offers.
- Where the employer does not offer a group health plan, and offers a wellness program that is open to employees and their spouses, the inducement to the spouse may not exceed 30 percent of the total cost to a 40-year-old non-smoker purchasing coverage under the second lowest cost Silver Plan available on the Exchange in the location that the employer identifies as its principal place of business.
Both final rules will be effective 60 days after their May 17 publication in the Federal Register. They will begin to apply to employer wellness programs in January of 2017. For more information, the EEOC has published several resources that may be of use:
- Q & A: EEOC's Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act
- Q & A: EEOC's Final Rule on Employer Wellness Programs and Title II of the Genetic Information Nondiscrimination Act