On May 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued final rules that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. The two rules provide guidance to employers about how workplace wellness programs can comply with the ADA and GINA and be consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).
The 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. However, both the ADA and GINA 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.
The rules regarding incentives and notices are effective on the first day of the new health plan year that begins on or after January 1, 2017. Other provisions of the new regulations are considered clarifications and the EEOC expects that employers and other plan sponsors should already be in compliance with the rules.
The EEOC rules use the same standard as the ACA in limiting the value of incentive and penalties to no more than 30% of the premium value but, unlike the ACA rules that allow the 30% value to be applied to the entire cost of the premium if an employee has dependents covered through the group plan, the two new rules limit the value of the inducements to 30% of the employee-only premium, not 30% of the actual cost of employee plus dependent coverage. The GINA rule does allow employers that incent spouses to provide a health history to offer the spouse an inducement of up to 30% of the employee-only premium too, which means the two incentives can be stacked together if the employee and spouse provide medical information.
Incentives are not allowed in exchange for the current or past health status information of employees’ children. Also, incentives cannot be made in exchange for specified genetic information of an employee, an employee’s spouse, and an employee’s children.
With regard to incentives for smoking cessation, the new rules are more restrictive than the ACA standards, which allow participants premium variations of up to 50% of total premium value. Smoking-cessation and wellness programs that just ask participants about their smoking history are allowed to include the higher level of incentives, but if they require medical tests to determine the presence of nicotine, any incentives or penalties are limited to 30% of the single employee rate.
The ACA’s incentive limitations and notice requirements only apply to health-contingent wellness programs. However, the EEOC rules apply to all wellness programs that include disability-related inquiries or medical examinations, which can include participatory wellness programs. The EEOC rules apply to wellness programs that aren’t contingent in an employee’s participation in the group health plan and to employers that offer wellness programs, but do not offer group health benefits. In these cases, the incentive limit is 30% of the single employee premium of the lowest-cost plan an employer offers. If there is no group plan offered, then 30% of the cost of self-only coverage for a 40-year-old non-smoker under the second-lowest-cost silver plan through the marketplace that covers the location of the employer’s principal place of business.
The EEOC rules also apply to de minimus programs, which means employers that offer such things as coffee mugs or t-shirts will have to quantify the value of such incentives.
There are also new notice and privacy requirements that apply to all wellness programs. Fortunately, a template is being developed and if an employer already provides a required wellness notice to participants in a health-contingent wellness program, the new extended language may be folded into that notice.