CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
521 Fifth Avenue
New York, NY 10175
Tel: (212) 682-0020

 

May 16, 2016

EEOC Finalizes Rules on Employer Wellness Programs

On May 16, 2016, the United States Equal Employment Opportunity Commission (the “EEOC”) issued final rules that provide guidance to employers and employees about how workplace wellness programs can comply, respectively, with the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). Effective on January 1, 2017, the final rules 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 ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions for their family members. Both laws, however, permit employers to ask health-related questions and conduct medical examinations to determine risk factors if the employer is providing health or generic services as part of a voluntary wellness program. Many employers offer workplace wellness programs to encourage healthier lifestyles and prevent diseases.

Incentives

Both rules provide 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 to employees of up to 30% of the total cost of self-only coverage.

No incentives are allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee's spouse, and an employee's children. Furthermore, employers may not retaliate against or deny access to health insurance or health insurance benefits to employees, and/or his or her family members, due to a spouse’s refusal provide information about his or her manifestation of disease or disorder to an employer-sponsored wellness program. It is already unlawful to do so against an employee.

Disclosure and Confidentiality

Both rules state that information from wellness programs may be disclosed to employers only in aggregate terms. They also both 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 ADA rule further requires that employers give participating employees a notice informing them of what information will be collected, with whom it will be shared and for what purpose, the limits on disclosure, and the way information will be kept confidential. The GINA rule includes statutory notice and consent provisions for health and genetic services to employees and their family members.

Takeaway for Employers

Employers that offer workplace wellness programs should review their policies to ensure that they comply with the EEOC’s final rules regarding the ADA and GINA. Specifically, employers should ensure that their wellness programs protect participants’ sensitive medical information and maintain their confidentiality.

* * *

If you have any questions regarding the EEOC’s final rules or workplace wellness programs, please do not hesitate to contact us.