New EEOC Rules on Employer-Sponsored Wellness Programs

By: Kristen M. Whittle and Greg Vanden-Eykel

Employer-sponsored wellness programs, popular due to their goals of promoting healthy lifestyles for employees and decreasing health care costs, have been subject to scrutiny by the Equal Employment Opportunity Commission (EEOC) because of their privacy implications and potential discriminatory impact on certain workers and their families. In a press release issued on May 16, 2016, the EEOC announced the issuance of two new rules that “provide guidance to both employers and employees about how workplace wellness programs can comply with the [Americans with Disabilities Act (ADA)] and [Genetic Information Nondiscrimination Act (GINA)].” Pursuant to the ADA and GINA, these new rules apply to public and private employers with 15 or more employees.

Workplace wellness programs often use financial and other incentives to encourage, but not require, participation, and may involve medical questionnaires, examinations, or other assessments to screen for health risk factors, such as weight, blood pressure, and cholesterol. Under the final rules, which will go into effect in 2017, “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.”

However, “[t]he final ADA rule provides 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 percent of the total cost of self-only coverage.” In addition, “[t]he final GINA rule provides that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.”

Employers that presently offer wellness programs, but do not provide employees with the detailed information about specific medical information to be obtained, how that information will be used, who will receive it, and the restrictions on disclosure, must create new or revise existing policies and/or wellness program materials to comply with these new rules.

The full text of the EEOC’s press release, and related resources, are available here:
https://www.eeoc.gov/eeoc/newsroom/release/5-16-16.cfm
https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm
https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm