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EEOC Finalizes Regulations on Wellness Plans

On May 17, the Equal Employment Opportunity Commission (EEOC) published final rules meant to provide employers with new guidance on how to implement wellness plans in their healthcare programs without violating either Title I of the Americans with Disabilities Act (ADA) or Title II of the Genetic Information Nondiscrimination Act (GINA). The rules also address how wellness plans that are compliant with ADA and GINA will be consistent with the provisions governing wellness programs under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).

Beginning in April 2015, the EEOC took steps to address issues arising from employer wellness programs which often use health risk assessments, medical questionnaires and/or biometric screenings to determine the health risk factors of employees.

As the EEOC states: “ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members, including spouses. Both laws, however, allow employers to ask health-related questions and conduct medical examinations, such as biometric screenings to determine risk factors, if the employer is providing health or genetic services as part of a voluntary wellness program.”

As such, in April of last year, the EEOC issued proposed rules to address whether offering an incentive for employees or their family members in exchange for health information would render wellness programs involuntary under GINA and the ADA, even though such programs met the requirements of the ACA. The April 2015 proposal explains that employer wellness plans will be viewed as ADA-compliant as long as the offer of incentives does not exceed 30 percent of what an employee would pay to participate in a group health plan.

The October 2015 proposal clarifies that employers who offer wellness programs as part of group health plans are allowed to offer limited incentives — up to 30 percent of the cost of what an employee would pay to participate in a group health plan — in exchange for an employee’s spouse providing information about his or her current and past health status. CUPA-HR filed comments on both proposals expressing significant concerns.

The final rules remain very similar to the 2015 proposals, with the EEOC only making limited changes. The final ADA rule allows for incentives of up to 30 percent of the total cost of self-only coverage to be offered for participation in wellness programs that ask questions about employees’ health or include medical examinations and are part of a group health plan; similar limitations are imposed on wellness programs that are not part of a group health plan or where participation in the plan is not required for participation in the wellness plan.

The final GINA rule restricts the incentive attributable to a spouse’s participation to 30 percent of the total cost of self-only coverage and permits the employer to request the genetic information of the spouse of an employee. Unfortunately, the relatively minor changes between the proposed rules and the final rules fail to close the gap between the ACA and EEOC regulations, which is problematic for employers.

The final rules will be effective on the first day of the first plan year that begins on or after January 1, 2017. The EEOC has also provided the following question-and-answer documents and fact sheets for small businesses to help with compliance: FAQ ADA, FAQ GINA, ADA Fact Sheet, GINA Fact Sheet.

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