On May 16, 2016, the Equal Employment Opportunity Commission (EEOC) released its final rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) on employer-sponsored wellness programs. The final guidelines now give employers clearer direction on the compliance of employee wellness programs under the ADA and GINA.
EEOC's Final Rules on Wellness Programs Help Employers Comply with ADA, GINA
Many employers across the nation offer employee wellness programs with participation incentives. But the EEOC's new wellness program rules offer direction on how these employers can comply with the ADA and GINA while maintaining their employer-sponsored wellness programs. The new guidelines allow employers to offer incentives to workers who participate in wellness programs that ask health-related questions, include medical exams and more as long as the information provided isn't used to discriminate against the employee.
The EEOC also believes that their new guidance will help employers run wellness programs that are consistent with the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).
Final Regulations Clear Up Confusion for Employers and Employees
While the proposed regulations on the ADA's application to wellness programs in 2015 created confusion surrounding the EEOC's position in lawsuits alleging that certain wellness program practices violated the ADA, the final rules resolve employers' unanswered questions. However, they don't do much to resolve compliance complexities that wellness programs can face when attempting to comply with a plethora of regulatory schemes.
Despite these complexities, the new rules clearly outline the maximum incentives that employers can legally offer employees who opt to participate in employer-sponsored wellness programs. For example, if your employer's wellness program is only open to workers and family members who are enrolled in a particular plan, then the maximum incentive your employer may give you is 30 percent of the total cost of self-only coverage of the plan. Additionally, if your employer makes multiple plans available to you, then the maximum incentive would be 30 percent of the lowest-cost major medical self-only plan that they provide you and your coworkers.
If your employer does not offer health insurance, the rules will still allow for incentives if you choose to participate in a wellness program.
New EEOC Wellness Program Rules Come with Increased Liability for Employers
While the EEOC's new wellness program regulations help both employers and employees navigate the complex world of wellness program compliance under the ADA and GINA, your employer must pay careful attention to ensure that their internal policies actually comply with the law.
It's important to note that the final ADA regulations generally follow the proposed regulations from 2015. The final rule retains these requirements plus provides clarifications on additional points which you can find here. In addition, under the new GINA rule, your employer can offer you and coworkers rewards or penalties in exchange for a spouse (but not children) providing details regarding his/her current or past health status as part of an employee wellness program. An employer-sponsored wellness program must still also comply with other laws such as HIPAA, Title VII, the California Fair Employment and Housing Act (FEHA), the Equal Pay Act, and the Age Discrimination in Employment Act (ADEA). The final comply-by date is the first day of an employer's first plan year that begins on or after January 1, 2017.
This sample notice from the EEOC can help you understand what an employer must do to comply with the final regulations. Your employer must provide you and other employees with their own formal notice before you decide to participate in a wellness program, any health risk assessments or medical examinations.
EEOC Releases Final Rules on Wellness Programs: For Further Reading
- EEOC Issues Final Rules on Employer Wellness Programs via EEOC.gov
- EEOC's Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act via EEOC.gov
- EEOC Issues Final Wellness Plan Regulations and Immediately Asserts Retroactive Effect via Lexology.com
- Final ADA Wellness Rules: 5 Important Changes for Employer Wellness Programs via Healthcare Reform Digest
- Sample Notice for Employer-Sponsored Wellness Programs via EEOC.gov
If you find that your employer is subjecting you to genetic information discrimination or disability discrimination in the workplace, contact the expert California employment attorneys at Hennig Ruiz for a free consultation to discuss your options.