New rules effective January 1, 2017, may affect your business.
At the start of the new year, some company wellness programs may be violating the law. In May of this year, several government agencies issued final regulations that affect workplace wellness plans. The aim of these regulations is to balance employer interest in healthy employees with employee protection from discrimination based on health admissions, including disabilities and genetic conditions.
The regulations issued by the Equal Employment Opportunity Commission (EEOC), umbrella similar provisions of the Employee Retirement Income Security Act (ERISA), the American with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and the Health Insurance Portability and Accountability Act (HIPAA). They specifically restrict wellness programs part of group health plans in which workers and their families reveal health information to incentives of no more than “30% of the cost of self-only coverage under the applicable health plan.” The new rules apply to all wellness programs, however, whether part of a health plan or not.
All of the above-named Acts secure employee health privacy and protect employees and their spouses from discrimination due to their “health status.” The Acts forbid employers (the ADA and GINA applies to companies with 15 employees or more) to inquire about and use obtained information on employee “health status,” with the exception of voluntary participation in workplace wellness programs. GINA disallows incentive offers in exchange for genetic information of employees or their families.
The new rules specify the qualifications of voluntary wellness programs that offer incentives as “reasonably designed to promote health or prevent disease,” and require employers to give notice to employee wellness program participants explicitly detailing the kind of medical information to be collected and its use. Plans that simply shift costs to employees, merely implemented as cost savings to the company or lack any feedback to employees or their spouses on the health data collected may not qualify.
Though most comprehensive wellness programs already comply with the long-existing laws protecting privacy and discrimination, employers who offer participation incentives in wellness programs that include employees’ (and their spouses’) health disclosures on medical questionnaires, health risk assessments and biometric screenings must be aware of the new rules.