The US Equal Employment Opportunity Commission (EEOC) recently released final wellness plan regulations providing guidance on how employer wellness programs may comply with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities. Title II of GINA protects employees from employment discrimination based on their genetic information, including the health status of workers’ families. The EEOC made it very clear that compliance with the nondiscrimination rules under the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (ACA) (HIPAA Nondiscrimination Rules), does not necessarily mean that an employer is in compliance with the final wellness program rules under the ADA or GINA.
ADA Final Regulations
The ADA final rule explains how employers may use incentives to encourage employees to participate in wellness programs that make disability-related inquiries or require participants to undergo medical exams, including through medical questionnaires, health risk assessments (HRAs) and biometric screening. Wellness programs that do not include disability-related inquiries or require participants to undergo medical exams would not be subject to the ADA final rule. For example, a wellness program that simply requires employees to engage in a certain activity (such as attending a nutrition or weight loss class, or walking a certain amount every week) in order to earn an incentive would not be subject to the ADA final rule. However, the ADA requires employers to provide reasonable accommodations that allow employees with disabilities to participate in such programs. Like GINA, the EEOC’s rules under the ADA apply to any wellness program offered by an employer (whether or not through a group health plan). Wellness programs subject to the ADA must meet the following requirements:
GINA Final Regulations
The EEOC clarified that employers may provide limited incentives to an employee whose spouse voluntarily provides current or past health status information on an HRA as part of a wellness program. GINA generally restricts an employer’s ability to acquire or disclose genetic information about its employees and prohibits employers from using genetic information to make employment-related decisions. GINA defines “genetic information” as including medical information regarding a “family member,” which includes an individual’s spouse. For plan years beginning on or after January 1, 2017, the following key provisions of the final GINA regulations apply:
Employers should review their wellness program design in light of these final rules, while also ensuring compliance with previously existing rules applicable to wellness programs under HIPAA, the ACA and other federal discrimination laws.