EEOC Proposes Wellness Program Regs to Cover Voluntariness, Confidentiality

ADA

Proposed Regulation Section

What it Would Require

29 CFR 1630.14(d)(1): Types of Employee Wellness Programs

This section would define a “wellness program” as a “program of health promotion or disease prevention that includes disability-related inquiries or medical examinations.” It would provide that two types of wellness programs are considered employee health programs under the ADA:

1. Participatory. In this kind of a program, none of the conditions for obtaining a reward is based on a person satisfying a standard that is related to a health factor.
2. Health-contingent. This type of program requires a person to satisfy a standard related to a health factor to obtain a reward.

29 CFR 1630.14(d)(2): Voluntary

Under this section, which retains some currently existing rules, an employer would not be able to:

• Require employees to participate.
• Deny coverage under any of its group health plans or particular benefits packages for nonparticipation.
• Limit the extent of coverage for nonparticipation.
• Take adverse action against employees who decline to participate.

Also, and in response to the AARP ruling, this portion of the proposed regs states that employers may offer no more than de minimis incentives – like a water bottle or “gift cared of modest value” – to encourage employees to take part in a wellness program that includes disability-related inquiries.

29 CFR 1630.14(d)(3): Confidentiality

This section retains all the confidentiality rules from the current regulations. Medical information collected through a wellness program may be provided to a covered entity only in aggregate terms that do not disclose or are not reasonably likely to disclose the identity of specific individuals except as needed to administer the health plan.

In practical terms, information obtained regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files.

29 CFR 1630.14(d)(4): Relationship to Other EEOC Laws

Not earth-shattering, but this rule would explain that complying with ADA requirements doesn’t relieve a covered entity from the obligation to comply with other nondiscrimination laws.

29 CFR 1630.14(d)(5): Safe Harbor

A “safe harbor” provision would protect employers who offer incentives to employees who answer disability-related questions or undergo medical examinations as part of a health-contingent wellness program if the program is part of or qualifies as a group health plan and follows nondiscrimination requirements under HIPAA. The EEOC will consider a wellness program to be part of a group health plan when:

1. The program is only offered to employees who are enrolled in an employer-sponsored health plan.
2. Any incentive offered is tied to cost-sharing or premium reductions or increases under the plan.
3. The program is offered by a vender that has contracted with the group health plan or issuer.
4. The program is a term of coverage under the group health plan.

29 CFR 1630.16(f): Permitted Activities

This section would set forth that a program that requires an employee to satisfy a standard related to a health factor to earn a reward or avoid a penalty is permissible if it complies with HIPAA nondiscrimination requirements.

GINA

Proposed Regulation Section

What it Would Require

29 CFR 1635.8(b)(2)(i): Health and Genetic Services Exception

Under revised rules, the new regulations would specify that genetic information may be obtained through employer-provided health or genetic services only if prior, knowing, voluntary, and written authorization is obtained. The exception would apply only if the covered entity used an authorization form that:

1. Is written so that the person from whom the genetic information being obtained is reasonably likely to understand it.
2. Describes the type of genetic information that will be obtained and the general purposes for which it will be used.
3. Describes the restrictions on disclosure of genetic information.

29 CFR 1635.8(b)(2)(iii): De Minimis Incentives

Similar to the ADA context, the new rules would set forth that incentives for participating in a wellness program must be de minimis. For example, a water bottle or a gift card of “modest value” would be acceptable. In examples that the EEOC provided, the commission indicated that $150 was an acceptable “modest” value.

Practices such as imposing a substantial surcharge or withholding a reward from an employee would constitute actions that discriminate.

29 CFR 1635.8(b)(2)(v): Employment Discrimination Based on a Family Member’s Refusal to Provide Information

This section would prohibit covered entities from requiring family members to provide information about their manifestation of a disease or disorder to an employer-provided wellness program and prohibit entities from taking adverse actions against employees because their family members refuse to provide information.

However, covered entities would be able to deny an employee an incentive based on a family member’s refusal to provide information.