Recently, the Equal Employment Opportunity Commission (EEOC) clarified two final rules describing how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to employer wellness programs that require health information from employees and their spouses. The guidance provides employers and employees with information about how voluntary workplace wellness programs can comply with these two Acts, consistent with the relevant provisions in the Health Insurance Portability and Accountability Act (HIPAA).
Workplace wellness programs are often put in place in order to promote healthier lifestyles or prevent disease. On occasion, employees are requested to provide information about themselves in order to create employer statistics or track health outcomes. Requested information can include body weight and cholesterol, blood glucose, and blood pressure levels. Additionally, employers may choose to use medical questionnaires, health risk assessments, and biometric screenings to analyze health risks. The final rule goes into effect in 2017 and applies to all wellness programs that require medical examinations or disability-related information, or request information from a spouse about current or past health conditions.
Generally, the ADA and GINA prohibit employers from using information relating to an employee’s, or his or her family’s, health conditions; however, if the employer is providing health services through a voluntary wellness program, both Acts allow employers to use medical examinations in order to determine potential health risks. The final rule for both of the Acts provides guidelines for the level of incentives that an employer can offer an employee to participate in a voluntary wellness program.
The ADA
Title I of the ADA restricts employers from obtaining medical information from applicants and employees; however, it allows employers to request information about employees’ health, or conduct medical examinations, as part of a voluntary employee health program. Under the ADA, employers may not deny employees access to workplace wellness programs on the basis of disability. Furthermore, employers are required to provide reasonable accommodations to enable employees with disabilities to participate in any wellness programs.
The final rule provides employers with guidance on the extent to which incentives may be offered to employees in order to participate in wellness programs that request the participant to undergo medical examinations or answer disability-related questions. Wellness programs that do not request medical examinations or ask disability-related questions are not covered under the final rule; therefore, they do not have a limitation on the amount of incentive an employer may offer.
If a wellness program is open only to employees that are enrolled in a particular plan, then the employer may only offer up to 30% of the total cost for self-only coverage. The same level of incentive may also be offered if the employer only offered one group health plan but allowed any employee to participate in the wellness program, regardless of whether the employee is enrolled in the health plan.
If an employer does not offer health insurance, but wants to offer employees an incentive to complete annual tests, the employer may offer up to 30% of the cost that a 40-year-old non-smoker would pay for self-only coverage under the second lowest cost on the Silver Plan on the state or federal health care Exchange, in the employer’s principal place of business. The Silver Plan was used for this percentage because it is the most popular plan on the Exchanges.
GINA
GINA prohibits both employment and insurance discrimination based on genetic information. Under Title II of the Act, which covers employment discrimination, employers and other covered entities may not use genetic information when making decisions regarding employment. Employers may not request, require, or purchase genetic information from job applicants, current and former employees, labor union members and apprentices, and trainees, unless at least one exception applies. For more information on GINA, see our previous article on the EEOC’s Final Rule on the Implementation of the Act.
GINA contains an exception to the prohibition of obtaining genetic information of employees for voluntary programs that offer health or genetic services to employees or their family members. The final rule provides that, in order to entice employees to participate in these voluntary programs, employers may offer limited incentives, either in the form of a reward or penalty.
Generally, if an employer wishes to provide an incentive for employees to participate in voluntary wellness programs that request an employee’s spouse to provide information about current or past health conditions, then the employer may offer up to 30% of the total cost of self-only coverage, major medical self-only plans, or the second lowest cost Silver Plan. The specific coverage that will be used for the 30% calculation depends on the amount of group health plans that the employer offers.