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EEOC Final Rule on Employer Wellness Programs

Published:  January 5, 2017

      The Equal Employment Opportunity Commission (“EEOC”) rule on 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 became effective January 1, 2017 (the “Rule”).  The Rule is designed to provide guidance on how the EEOC interprets provisions of employer wellness programs in light of previous conflicting decisions.  It applies to wellness programs offered by employers that request health information from employees and their spouses, and includes all workplace health programs, including those not tied to a particular health plan. 

     The wellness programs must be reasonably designed to promote health and prevent disease.  The Rule explicitly states that a wellness program is not reasonably designed to promote health or prevent disease if it exists merely to shift costs from the employer to employee based on the employee’s health, or is used by the employer only to predict its future health costs.

     Both the ADA and GINA allow an employer to ask health-related questions and conduct medical examinations if the employer is providing health or genetic services as part of the voluntary wellness program.  A wellness program is not “voluntary” if an employee has no choice but to join or the employee faces financial penalties for opting out of the wellness program.

     Under the ADA rule, an employer is allowed to offer employees an incentive of up to 30 percent of the total cost of self-only coverage to join the wellness program.  The GINA rule allows an incentive to an employee’s spouse of up to 30 percent of the total cost of self-only coverage.  The GINA rule does not allow incentives for the current or past health status information of an employee’s children, or an exchange for specified genetic information of an employee, their spouse, or their children.

     An employer cannot require an employee to participate in a wellness program, cannot deny the employee who does not participate in a wellness program access to health coverage, or prohibit any employee from choosing a particular plan.  An employer may not take adverse action, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program.

     Both rules also address notice requirements to employees.  The ADA rule requires that employers give a participating employee a notice that clearly states the information that will be obtained as part of the program, with whom it will be shared and for what purpose, the limits on the employer’s disclosure of the information, and the manner in which the information will be kept confidential.  GINA requires statutory notice and consent provisions for health and genetic services provided to employees and their family members.

     Employers will want to review their wellness policies in light of the EEOC’s rule to ensure compliance

If you have any questions regarding compliance with the EEOC Rule on Employer Wellness Programs, or any other aspect of employer sponsored wellness programs, please contact the attorneys at Royal, P.C.