How New EEOC Regulations May Impact Employer-Sponsored Wellness Programs

Employer-sponsored wellness programs can be an effective way to control healthcare costs while rewarding employees for becoming active in their own healthcare management. The Equal Employment Opportunity Commission (EEOC) recently released a final rule to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs.  The EEOC also published a final rule that provides guidance on the extent to which the Americans with Disabilities Act (ADA) permits employers to offer incentives to employees who respond to disability-related inquiries or undergo medical examinations as part of wellness programs. Here's what leaders in business and HR will want to know about the Agency’s new guidance.

Requesting Personal Information

The final rules permit employers to provide incentives to employees who participate in wellness programs that ask certain questions about the employee's and their spouse's health, as long as the regulations are met to ensure the  information is not used to discriminate. Today, many employers offer wellness programs that are designed to help improve health or prevent disease. In some cases, the programs use baseline health assessments, medical questionnaires, and biometric screening to determine health risk. The programs may use factors like body weight and BMI, blood pressure, cholesterol, and blood glucose levels to assess risk. Programs may often offer incentives that are financial or in-kind (e.g., time off awards, prizes or other items).

The Role of Personal Health Information: ADA and GINA

It's important to note that the ADA and GINA generally prohibit employers from obtaining medical information (including genetic information) from applicants and employees'. Under both laws, employers may ask questions or conduct assessments of risk as part of an employee wellness program.

Specific Guidance in the Final Rules includes:

Program design—Ensure that your programs are "reasonably designed" to promote good health and prevent disease. It's critical to ensure that your goals are not to collect medical information, sell employee medical information, or shift healthcare costs to employees.  Refer to the Final Rule for more information on the “reasonably designed” standard.

Confidentiality—The EEOC’s guidance highlights the importance of safeguarding employee health information. The final rules both state that information from wellness programs can only be disclosed to employers in aggregate.

Notices—The ADA rule requires employers to give employees who are participating in the program a notice on what information will be collected via the wellness program. In addition, the notices must outline how information will be used, who it will be shared with, the purpose, and how information will be kept confidential. GINA includes additional factors, including statutory notice and consent provisions for genetic and health services provided to employees.

Companies must begin to prepare now, as the final rules go into effect January 1, 2017. The regulations apply to all workplace wellness programs. It's important to determine if your company's incentives align with the regulations and that your request for and use of employee health information is in compliance with the ADA and GINA, and the final rules released by the EEOC. Additional guidance including FAQs and Fact Sheets related to the final rules can be found on the EEOC website.