EEOC Issues Final Rules on Wellness Plan Incentives

Last week, the EEOC issued two Final Rules, effective in 2017, that detail 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 requesting health information from employees and their spouses.

The rules, which amend GINA regulations and create new ADA regulations, ostensibly permit wellness programs to address employee health while protecting employees against discrimination.

According to the EEOC’s press release, employers who offer workplace wellness programs sometimes use questionnaires or health-risk assessments to determine an employee’s health-risk factors, such as weight, cholesterol levels, and blood pressure. Historically, these programs have provided financial incentives for employees to participate or achieve certain health-related goals.

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. Both laws, however, 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. Last year, EEOC issued proposed rules that addressed whether offering an incentive for employees or their family members to provide health information as part of a wellness program would render the program involuntary.

The final ADA rule provides that wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule provides that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.

The new rules have already been criticized by both ends of the political spectrum. Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.) observed that the EEOC’s Final Rules differ markedly from rules issued by other agencies and are bound to cause confusion. Meanwhile, Judith Lichtman, senior adviser for the National Partnership for Women & Families in Washington, described the new rules as “allowing for coercive practices, so employees have to either share private medical information with employers or pay appreciably more for health insurance.”

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