Employer-sponsored “wellness programs” have become very popular, and are touted for the potential benefits to employees and employers alike: reduced absenteeism, lowered health care costs, reduced injuries, improved morale and productivity. But are these programs compliant with the ADA and other federal laws?
The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued proposed regulations that are hoped to help employers make the most out of wellness programs while complying with the Americans with Disabilities Act (“ADA”). The EEOC is also publishing a fact sheet for small businesses and a “Q&A” for the general public.
Key points from the guidelines:
Employers covered by the ADA (i.e. with 15 or more employees), who generally are restricted from collecting medical information from employees under the ADA, can do so as part of a wellness program. The wellness program must be designed to promote health and prevent disease, and must have a “reasonable chance” of improving health or prevent disease. If it is, an employer may conduct voluntary medical examinations, including voluntary medical histories, as part of an employee health program available to employees, but still must comply with the ADA, including non-discrimination, reasonable accommodation, and confidentiality requirements.
Under the proposed regulations, a program that collects information on a health risk assessment to provide feedback to employees about their health risks, or that uses aggregate information from health risk assessments to design programs aimed at particular medical conditions is reasonably designed. A program that collects information without providing feedback to employees or without using the information to design specific health programs is not.
If a health program is considered a wellness program that is part of a group health plan, employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential. The notice, for example, should identify what medical information is being collected (blood glucose levels), how it will be collected (i.e. by a blood test) and how that relates to the goal of the wellness program (i.e. identifying/lowering risk of diabetes).
The programs must be totally voluntary: employers may not interfere with the ADA rights of employees who do not want to participate, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes. Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.
Offering “incentives” (which include both financial and in-kind incentives, such as time-off awards, prizes, or other items of value) for employees to participate in wellness programs or to achieve certain health goals is permitted and does not make the program involuntary. The amount of the incentive that may be offered for an employee to participate or to achieve health goals is limited: it may not exceed 30 percent of the total cost of employee-only health coverage. Smoking cessation programs may offer up to 50% of the total cost of employee coverage for tobacco-related wellness programs if the HIPAA criteria for health-contingent wellness programs are otherwise met.
Medical information obtained as part of a wellness program must be kept confidential. Generally, employers may only receive medical information in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific employees. Wellness programs that are part of a group health plan may generally comply with their obligation to keep medical information confidential by complying with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.
Employers that are not HIPAA covered entities may generally comply with the ADA by signing a certification that they will not use or disclose individually identifiable medical information for employment purposes and abiding by that certification.
Employers must provide reasonable accommodations that enable employees with disabilities to participate and to earn whatever incentives the employer offers.
The comment period ends June 19, 2015, and the proposed regulations are expected to become final shortly thereafter. Often, new EEOC regulations signal the EEOC’s particular interest in areas of enforcement, so employers should examine their wellness programs to ensure compliance.
The full text of the proposed regulations are available at https://www.federalregister.gov/articles/2015/04/20/2015-08827/amendments-to-regulations-under-the-americans-with-disabilities-act#h-28