Insight to Action

Benefits & Healthcare Update: EEOC Publishes Final Rules for Wellness Programs under ADA, GINA

17 May 2016

On Tuesday, May 17th, the Equal Employment Opportunities Commission (EEOC), the guardian agency of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), published its final rules for the operation of wellness programs under the two workplace nondiscrimination statutes. For the most part, the final rules affirm EEOC’s approach as outlined under the proposed rules that the agency published early last year. The final rules are effective for plan years beginning on or after January 1, 2017.

Many of the EEOC’s regulations reinforce and reiterate requirements already present under HIPAA regulation but only apply to those wellness programs that ask disability-related questions or require employees to undergo medical examinations, such as with a health risk
assessment (HRA) or biometric screening.

  • Employers Cannot Bar Plan Eligibility: Employers may not require employee participation for either employment or for eligibility under a group health plan or particular benefit packages within a group health plan, e.g. a benefit specifically designed for people who do or do not participate in the wellness program.
  • Incentives Capped at 30% of Employee-Only Premium: Wellness programs may include incentives as large as 30% of the total cost of employee-only coverage that the employee is enrolled in.
    • If an employee can earn incentives without being enrolled in the employer’s group health plan, then the incentive for unenrolled employees cannot exceed 30% of the total cost of employee-only coverage of the lowest-cost group health plan offered by the employer.
    • The 30% incentive cap applies to tobacco cessation programs, but only if the program requires the employee to undergo testing to confirm the tobacco-free status of the employee.
  • Programs May Offer Incentives for Spousal Participation: Under GINA, wellness programs may offer incentives for spouses to participate, but the financial incentives must be separate for the spouses (i.e. cannot require spousal participation for employee to obtain reward).
    • Programs may not offer incentives for child/dependent participation.
  • Notices Regarding Use of Information: If the wellness program is part of a group health plan, employers must provide notices clearly stating what medical information is being collected, how the information will be used, who will receive the information, the restrictions on its disclosure, and the methods the employer and plan use to prevent the disclosure of medical information.
  • Collected Information Only Provided to Employer in Aggregate: Medical information may only be provided to the employer in aggregate terms that do not disclose the identity of specific individuals, except as needed to administer the health plan.
  • Programs Cannot Require Sale or Transfer of Information: Under both the ADA and GINA, wellness programs cannot require employees to agree to the sale, exchange, or transfer of health information in order to obtain the reward. Programs and plans may still disclose information to vendors or third party providers of services, but plans cannot offer incentives to get an employee to agree to such a transfer.

Employers and group health plans should reexamine their wellness programs in light of the proposed regulations. Cammack Health
will continue to monitor for any further guidance from the EEOC.

The final regulations can be downloaded here:

Final Rule under ADA: https://www.gpo.gov/fdsys/pkg/FR-2016-05-17/pdf/20...

Final Rule under GINA: https://www.gpo.gov/fdsys/pkg/FR-2016-05-17/pdf/20...

If you have any questions regarding compliance matters with wellness programs, please contact Ed Doherty at 646-839-8251 or
via email at EDoherty@cammackhealth.com.

You can follow Ed on Twitter at @CHEdDoherty