Just when U.S. employers were getting the hang of program rules under the Affordable Care Act (ACA) and HIPAA, the Equal Employment Opportunity Commission (EEOC) in May 2016 has added new regulations on to workplace wellness programs. These regulations, issued under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), are additional to the requirements already necessary for compliance with ACA/HIPAA wellness programs. These rules are slated to take effect for programs offered under health plans on the first day of the plan year beginning on or after January 1, 2017. For programs not offered under a health plan, the effective date for those same changes will be the first day of the plan year of the health plan whose cost is used to determine the EEOC-imposed limit on incentives.
These final EEOC rules apply more broadly to ACA/HIPAA wellness program rules, which apply to wellness programs that either are themselves health plans or are offered as part of health plans, whereas the ADA-related rules apply to any wellness program that includes a medical examination or disability-related inquiry, even if the program is offered to individuals not enrolled in the employer’s health plan. The GINA-related rules apply to programs, essentially health risk assessments, under which employees are offered incentives for a spouse’s participation.
Essentially, the ADA imposes restrictions on an employer’s ability to conduct medical examinations (MEs) and disability-related inquiries (DRIs) of employees. The EEOC’s rules come into effect when an employer has to complete an ME/DRI as part of the wellness program. Employers:
- Cannot require an employee to participate or deny coverage under a health plan or coverage option under a plan.
- Must provide notice to employees submitting to a ME/DRI. This notice must describe what medical information will be obtained and what it will be used for.
The EEOC has also placed a limit on incentives. Employers offering a single health plan cannot exceed the total of incentives or penalties related to the employee’s participation by 30 percent of the total cost of employee-only coverage. This applies whether the program is offered to only health plan enrollees or to enrollees and non-enrollees. It is important to note that these rules do not govern incentives that may be offered for a spouse’s or other dependent’s participation in a ME, but the GINA-related rules may impose limits or even bar the incentive.
These final regulations will have far-reaching impact on existing robust wellness programs and will affect employee-plus-spouse family coverage, incentives to join wellness programs, as well as other programs where incentives are involved, which will severely constrain employers. After 2017, most every wellness program in existence, with the exception of a very few that are essentially ineffective, will have to comply with the final EEOC rules. In effect, it may be necessary to parse out which parts of a wellness program relate to which set of often-competing rules if they do not want to run the risk of non-compliance.
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