EEOC Final Rule. What you need to know now!

Mercer PeoplePro Blog - EEOC Final Rule on Employer Wellness Programs

EEOC Final Rule on Employer Wellness Programs

Written by Mercer PeoplePro guest writer Kathleen Huggins

The Equal Employment Opportunity Commission (EEOC) has issued its final rule amending the Regulations and Interpretive Guidance regarding the implementation of Title I of the Americans with Disabilities Act ADA) and the Genetic Information Nondiscrimination Act (GINA) relating to employer wellness programs. The rule was issued on May 17, 2016 and becomes effective on January 1, 2017 for plans on a calendar year or on the first day of the plan year that begins after January 1, 2017 for plans on a different plan year.

Workplace Wellness in Compliance with the ADA and GINA

Title I of the ADA prohibits employers from discriminating against any individual who has a disability. It also restricts employers from collecting medical information from employees, except when the collection of such information is part of a voluntary employee health program. Wellness programs are considered a type of employer-sponsored health plan.

The ADA also prohibits employers from denying an employee access to a wellness program on the basis of a disability, which means the employer must provide a reasonable accommodation for any individual who otherwise would be excluded from participation. Any information gathered as part of the program must be kept confidential.

GINA prohibits employers from using genetic information in employment decisions and from disclosing genetic information of the employee or the employee’s family.

What Does the New Rule Mean?

The final rule was issued to provide clarification on the following:

  • What constitutes a “health program;”
  • A definition of “voluntary” as related to participation in a health program;
  • The broader meaning of “wellness program” under ADA than under HIPAA;
  • The ability of a plan to offer incentives to participate in wellness programs;
  • Maximum incentive for tobacco-cessation program that is lower than allowed under ACA;
  • The extent to which an employer can ask employees to answer disability-related questions or undergo medical examinations;
  • The exception to the “safe harbor” provision in the ADA for using health conditions as a basis for insurance cost decisions;
  • The ability to offer an incentive to provide genetic information about current or past health status as part of a voluntary wellness program; and
  • New notice requirements.

While there was a purpose to provide consistency with ACA and HIPAA regarding wellness program incentives, the ADA has some restrictions that ACA and HIPAA do not. Because of these differences, designing a fully compliant wellness program has become more challenging. Care must be taken in designing incentives and disability-related questionnaires to take into account what could be called a higher standard of care imposed by the ADA.

What Should You Do Now?

  • Review existing wellness programs and any incentives currently being offered.
  • Don’t overlook those that may be offered by a third-party, such as an insurance carrier.
  • Be sure to also consider any that are offered as a standalone wellness offering, not just those offered under the group medical plan.
  • First, determine whether the new rule applies to any plans.
  • If the new rule applies, ensure that existing plans and incentives will still be in compliance after January 1, 2017; if they are not, revise plans and update plan documents to reflect the changes.
  • Don’t forget communicating the changes to employees – if incentives must be reduced, this may have a financial impact on covered employees.

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