EEOC issues final rules on employer wellness programs

The EEOC finally clarified their rules on wellness programs – meaning confusion over how those rules and the Affordable Care Act (ACA) mesh will soon come to an end.

Thanks to differing instructions between the ACA and the law outlined in the American with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), employers were stuck in a regulatory mire. The ACA encourages employers to offer incentives for participating in certain wellness programs. But the EEOC had been suing companies over wellness policies that supposedly violated the ADA due to "unlawful" penalization of employees who opted out of the same wellness programs the ACA encouraged.

Both the ADA and GINA generally prohibit employers from obtaining and using information about an employee's health or their family's health, but they do allow employers to ask questions and complete medical examinations like biometric screenings as part of a voluntary wellness programs.  

The final EEOC rules are outlined below.

The ADA rule

  • Corporate wellness programs that ask questions about employee health or include medical examinations can only offer incentives up to 30% of the total cost of self-only coverage.
  • It also specifies that employers must give participating employees a notice that explains what information will be gathered in a wellness programs, who will see it and for what purpose.

The GINA rule

  • Maximum incentive for having a spouse participate may not pass 30% of the total cost of self-only coverage, either. 
  • Incentives for spouses are allowed for health assessments, biometric screenings, and questions about current health status, but are not allowed if tied to questions about family history or genetic tests. 
  • The rule bars exchanges of "current or past health status information" of employees' children for incentives altogether.

Both final rules state "information from wellness programs may be disclosed to employers only in aggregate terms." The EEOC also reiterated a ban on plan designs that only allowed more generous plans to those who completed a health assessment or biometric screening.

These guides come at a time when wellness programs have seized the employer health space. According to a survey released last month by The National Business Group on Health and Fidelity Investments, 78% of employers offer biometric screenings while 76% offer a health risk assessment program in 2016.  Almost three fourths of employers (72%) use incentives to engage employees in these programs.  

"For most large employer wellness programs, it’s business as usual," Brian Marcotte, president and CEO of the NBGH, said in a statement. "Though we are still reading the fine print, the rules appear to contain no big surprises.  All in all, the rules are very much in line with what the EEOC proposed last year.”

The EEOC also decided to keep administrative requirements comparatively low, Rich Glass, Principal with Mercer, noted in a statement. 

"[The] EEOC decided not to require a medical certification alternative to wellness program requirements or a written authorization from each participant confirming voluntary participation," he said.

The final rules will go into effect in 2017 and apply to all employer wellness programs, including "those in which employees or their family members may participate without also enrolling in a particular health plan." 

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Filed Under: Comp & Benefits Legal