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EEOC Issues Guidance on Employee Wellness Programs, Clarifying How the Programs Can Remain in Compliance with the ADA

June 29, 2016

The Equal Employment Opportunity Commission (EEOC) recently released a final rule amending its regulations implementing Title II of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The final rule sets forth the requirements for employer wellness programs to ensure compliance with disability and genetic information non-discrimination requirements.

According to the EEOC, “the ADA and GINA 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, allow employers to ask health-related questions and conduct medical examinations, such as biometric screenings to determine risk factors, if the employer is providing health or genetic services as part of a voluntary wellness program.” The Americans with Disabilities Act prohibits employers from discriminating against employees who do not participate in the wellness program. The EEOC’s final rule, however, takes the position that participation incentives do not violate the ADA if they are not “coercive.” The EEOC’s guidelines classify incentives as coercive only if they exceed 30 percent of the cost of self-only coverage under the group health plan. Employers are also required to provide reasonable accommodations to employees who want to participate in the wellness program and earn the incentives, but cannot do so due to a disability. Finally, employers are required to provide employees with a written notice stating what health information would be retrieved as part of the program and the limited purpose of retrieving such information. Employers would still be required to comply with the Health Insurance Portability and Accountability Act (HIPAA).

The GINA-related amendments to the final rule explain that, while GINA’s prohibition against obtaining genetic information does not apply to employer-sponsored wellness programs, they must be designed in a fair manner. For example, an employer could not penalize an employee if the employer finds out that an employee’s spouse has a chronic condition, and no incentives are allowed in exchange for current or past genetic information on a spouse or children. They can, however, tailor wellness program incentives towards ameliorating the impact of the condition on their employee or the employee’s spouse. The GINA-related amendments also contain the same restriction of incentives for joining employer wellness programs to 30 percent of the cost of self-only coverage under the group health plan.

The final rules therefore decrease the likelihood that employer wellness programs will be administered in a way that is discriminatory toward employees with disabilities, or employees who have dependents with disabilities, by ensuring they are designed in a fair manner that is not unduly coercive. The final rules may increase the likelihood of the participation of employees with disabilities, or employees who have dependents with disabilities, in employer wellness programs.

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