The Equal Employment Opportunity Commission, (EEOC) recently released its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act, (ADA). The final rule states that employers may provide limited financial and other incentives in exchange for an employee answering disability-related questions or taking medical examinations as part of a wellness program, whether or not the program is part of a health plan.
There are two main types of wellness programs, employer provided and health plan sponsored. Each type of program and any associated initiatives could be subject to regulations under the Health Insurance Portability and Accountability Act, (HIPAA) the Americans with Disabilities Act, (ADA), the Affordable Care Act, (ACA), and/or the Equal Employment Opportunity Commission, (EEOC).
Both employer provided and health plan sponsored programs can be in one of two forms, “health-contingent” or “participatory”. Health-contingent programs are typically associated with health plans and require an employee to attain a certain goal such as walking a certain number of steps per day or lowering cholesterol, in order to receive a reward for achievement or penalty for failing to meet the goal, such as higher premium costs to the employee.
Health-contingent wellness programs are further divided into Activity-only and Outcome-based programs, which must meet the following criterion:
Participatory programs are those that do not require a person to achieve any type of stated outcome but allow employees to participate in activities such as a nutrition education seminar or completing a HRA, and must meet the following requirements to be considered “voluntary” under the rule:
Additionally, employers are required to provide employees with notice of what medical information will be collected, how it will be used, who receives the information, and restrictions for disclosure. A new notification is not needed if the organization already provides the required information in an email or brochure stating the details of the wellness program.
Confidentiality requirements under the ADA apply to information from or created about employees, obtained through participation in wellness programs. Though the final rule did not change any language to the existing confidentiality provisions of the ADA, it did add two new requirements;
Wellness programs sponsored by group health plans are required to adhere to both the EEOC confidentiality requirements and HIPAA's privacy, security, and breach notification rules to protect information collected from or created about participants that can be used to identify them. By adhering to the HIPAA requirements, organizations typically meet their obligations under the EEOC’s Final Rule, which takes effect on January 1, 2017.