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May 17, 2016. The EEOC issued final rules on the administration of employer wellness programs. The rules address the relationship between the Genetic Information Nondiscrimination Act (GINA) and the obtaining and use of genetic information in employer wellness programs. The final rules are effective July 18, 2016, but will only be applicable to employee benefits plans on January 1, 2017.
Questions and Answers regarding the new final rules were published by the EEOC:
Employer wellness programs are health promotion and disease prevention programs and activities offered to employees as an employment benefit — either as part of an employer health plan or as separate benefits. Wellness programs commonly ask employees to fill out questionnaires about their health and risk factors. These questionnaires are often called “health risk assessments” or “HRAs.”
Wellness programs also often include biometric screening for health risk factors, including blood testing for diabetes or high cholesterol, and blood pressure tests for high blood pressure. Other employer wellness programs may be educational, such as to provide information about healthy nutrition and eating habits; or may be designed to change unhealthy behaviors such as tobacco use. They may also be inspirational to develop a healthier-at-work environment.
Employee advocates were concerned that the proposed employer wellness program rules would allow employers to discriminate against disabled employees. The final rules answer a number of questions regarding the relationship between the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA):
The Wellness/GINA rule uses the same definition of a wellness program, and the same requirements for a wellness program to be “reasonably designed to promote health or prevent disease.” This final rule allows an employer to ask for current or past health status information about an employee’s spouse as long as there is an inducement to participate. Inducements to spouses may be offered in all welfare plans. The inducements may be up to 30% of the cost of the plan. Refusal to participate in a wellness program by a spouse may not be used to deny access to health insurance or benefits if the spouse refused to provide health status information.
The new rules should reduce concerns employees may have had regarding wellness programs. They will still have a significant effect on employees’ and spouses’ participation in wellness programs. If the result of not participating is that the employee or the spouse has to pay up to 30% of the costs of health coverage, many employees and their spouses will not be able to afford to not participate in the programs.
This is a summary of complex information in the new rules. If you have questions about whether your employer’s wellness plan violates the EEOC rulings, you may contact Deborah Marcuse or Ellen Doyle at Feinstein Doyle Payne & Kravec, LLC.