The way employers offer health and wellness programs received an update on May 16, 2016. This update is per two final rules from the Equal Employment Opportunity Commission (EEOC) determining employer compliance with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Participation in health and wellness programs may require employees to disclose confidential information regarding health on questionnaires. The new rulings dictate guidelines on how and how much information may be gathered.
Although ADA and GINA laws forbid employers from gathering medical information from staff and applicants, laws do allow employers from using information from health and wellness questionnaires when participation is voluntary. In 2015, the EEOC reviewed whether offering employees financial compensation still constituted voluntary participation. The ADA’s final ruling is that employers may offer up to 30% incentive on total cost of self-only coverage under the group health plan for voluntary participation in a wellness program; The GINA’s final ruling allows for spousal participation so long as it does not exceed 30% of self-only coverage.
There are two rules regarding protecting employee confidentiality. First, information gathered in connection to a wellness program may not, within in reason, identify specific employees or reveal private medical information. Secondly, employees cannot be required by employers to agree to the sale of health information. These final rules will be effective in 2017 and will apply to all employer offered wellness programs and will include those not conditioned on a health plan enrollment.
The new rules clearly indicate that health and wellness program questionnaires must be designed with the intent to promote health and prevent disease. Additionally, the new rules clarify the 30% maximum incentives apply to both financial and in-kind incentives.