EEOC Issues Proposed Rule on ADA and Wellness Programs

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The U.S. Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking (NPRM) describing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of group health plans.  Members of the public have until Friday, June 19 to submit comments.

The EEOC’s proposed rule would provide much needed guidance to both employers and employees about how wellness programs offered as part of an employer’s group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).  In addition, the EEOC has also publishing a Fact Sheet for Small Businesses and a Question and Answer document for the general public.

Many employers that provide health insurance also offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease.  These programs sometimes use health risk assessments and biometric screenings to determine an employee’s health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels.  Some of these programs offer financial and other incentives for employees who participate or achieve certain health outcomes.

Although the ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations, it allows such inquiries and exams if they are voluntary and part of an employee health program.

The NPRM further requires that if an employee health program seeks information about employee health or medical examinations, the program must be reasonably likely to promote health or prevent disease.  Employees may not be required to participate in a wellness program, and they may not be denied health coverage or disciplined if they refuse to participate

The EEOC’s proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability.  The rule explains that under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs.  These programs can include medical examinations or questions about employees’ health (such as questions on a health risk assessment).

This limit is generally consistent with limits that HIPAA imposes on wellness programs.  The difference is that under the HIPAA/ACA regulations, if a spouse can participate in a wellness plan, the limit would be 30% of the cost of employee plus spouse coverage.

The rule also makes clear that the ADA provides important safeguards to employees to protect against discrimination based on disability.  Accordingly, medical information collected as a part of a wellness program may be disclosed to employers only in aggregate form that does not reveal the employee’s identity, and must be kept confidential in accordance with ADA requirements.

Employers also may not subject employees to interference with their ADA rights, threats, intimidation, or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes.  Finally, individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.

In addition to setting a limit on incentives, the NPRM, which includes interpretive guidance that will be published along with the final rule, requires that employers provide employees a notice that describes what medical information will be collected, with whom it will be shared, how it will be used, and how it will be kept confidential.  The interpretive guidance also includes an extensive discussion of both legal requirements and best practices that ensure confidentiality of employee medical information.

In addition, the EEOC has asked a number of specific questions in the preamble to the NPRM on which it seeks comment before finalizing the rule.  Methods for commenting are specified in the notice in the Federal Register.

The proposed regulations do not address how the Genetic Information Nondiscrimination Act (GINA) affects wellness plans.  The EEOC is expected to address GINA in future regulations.

The Office of Civil Rights within the Department of Health and Human Services has also released answers to frequently asked questions about wellness programs and the HIPAA privacy and security regulations.  If a wellness program is offered as part of a group health plan, the HIPAA rules apply; however, information collected under a wellness program offered directly by an employer outside of a group health plan is not protected under HIPAA, although other Federal or State laws may apply.

The Centers for Medicare & Medicaid Services has also issued a document making it clear that wellness programs offered by insurers are subject to the ACA’s rule on guaranteed availability.

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