EEOC Announces Final Rules for Wellness Programs

The U.S. Equal Employment Opportunity Commission (EEOC) issued two final rules that explain 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.

These rules offer guidance to employers and employees about how workplace wellness programs can comply with ADA and GINA, consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act.

The rules allow wellness programs to operate consistent with their stated purpose of improving employee health while protecting employees against discrimination. Workplace wellness programs sometimes use medical questionnaires, health risk assessments and biometric screenings to determine an employee’s health risk factors. Some of these programs provide financial or other incentives to employees who participate and achieve health goals. In general, ADA and GINA prohibit employers from gathering and using information about employees’ health conditions, or that of their family members. But the laws allow employers to ask health-related questions and conduct medical examinations if the employer is providing it as part of a voluntary wellness program.

The final ADA rule states 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% of the total cost of self-only coverage. The final GINA rule says that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30% of the total cost of self-only coverage, the same incentive allowed for the employee. No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information (e.g., family medical history or results of genetic tests) of an employee, an employee’s spouse, and an employee’s children.

NEXT: Protecting confidentiality

Both rules seek to ensure that wellness programs promote good health and are not just used to collect or sell sensitive medical information about employees and family members or to shift health insurance costs to them. They are also designed to protect confidentiality—the ADA and GINA rules state that information from wellness programs may be disclosed to employers only in aggregate terms. The ADA rule requires that employers give participating employees a notice that tells them what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential. GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members. Both rules prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive. The interpretive guidance published along with the final ADA rule and the preamble to the GINA final rule identify best practices for ensuring confidentiality.

“The Commission worked to harmonize HIPAA’s goal of allowing incentives to encourage participation in wellness programs with ADA and GINA provisions that require that participation in certain types of wellness programs is voluntary,” says EEOC Chair Jenny R. Yang. “These rules make clear that the ADA and GINA provide important safeguards to employees to protect against discrimination.”

Both rules will go into effect in 2017 and apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan.

The final ADA rule is listed here, and the GINA rule is here. In addition, question-and-answer documents are available for ADA and GINA. EEOC has also published two documents for small businesses regarding ADA and GINA.