Rules Allow Limited Incentives in Connection With Wellness Programs
The U.S. Equal Employment Opportunity Commission (EEOC) has issued two separate sets of final rules that describe 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.
The ADA and GINA, which apply to employers with 15 or more employees, 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, generally allow employers to ask health-related questions and conduct medical examinations if the employer is providing health or genetic services as part of a voluntary wellness program. Previously released proposed rules 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.
Limited Incentives/Inducements Permitted
In general, the final rules allow employers to provide:
- Limited incentives as part of wellness programs that make disability-related inquiries or require medical examinations;
- Limited inducements to an employee whose spouse receives health or genetic services offered by the employer-including as part of a wellness program-and provides information about his or her manifestation of disease or disorder as part of a health risk assessment, which may include a medical questionnaire, a medical examination, or both. However, such inducements will only be permitted if, among other requirements, the provision of genetic information is voluntary and the individual from whom the genetic information is being obtained provides prior, knowing, voluntary, and written authorization. Additionally, no inducement may be offered in return for the spouse providing his or her own genetic information, or for genetic information about an employee's children.
The term "incentive" (as used in the ADA final rule) or "inducement" (as used in the GINA final rule) includes both financial and in-kind incentives/inducements, such as time-off rewards, prizes, or other items of value, in the form of either rewards or penalties.
Amount of Incentives/Inducements
Inducements to a spouse who provides information about his or her manifestation of disease or disorder as part of a health risk assessment are generally the same as incentives available under the ADA to employees who answer disability-related questions or undergo medical examinations as part of a wellness program:
- Where the employer requires the employee to be enrolled in a particular group health plan in order to participate in the wellness program, the incentive may not exceed 30% of the total cost of the self-only coverage.
- Where the employer offers only one group health plan, and does not require the employee to be enrolled in that health plan in order to participate in the wellness program, the incentive may not exceed 30% of the cost of the self-only coverage.
- Where the employer offers more than one group health plan, and does not require the employee to be enrolled in a particular plan in order to participate in the wellness program, the incentive may not exceed 30% of the lowest cost major medical self-only plan.
- Where the employer does not offer a group health plan and offers a wellness program, the incentive may not exceed 30% of the total cost to a 40-year-old non-smoker purchasing coverage under the second lowest cost Silver Plan available on the state or federal Exchange in the location that the employer identifies as its principal place of business.
The final rules will apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular group health plan, and will generally become effective beginning January 1, 2017.
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