In May 2016, the Equal Employment Opportunity Commission ("EEOC") published final regulations explaining how employers may structure wellness programs under Title I of the Americans with Disabilities Act ("ADA") and the Genetic Information Nondiscrimination Act("GINA").
These regulations will become effective January 1, 2017. The final regulations apply to all wellness programs which include disability-related inquiries and/or programs that require employees to undergo medical examinations. Some key highlights of the new regulations include the following:
1. Wellness programs must be reasonably designed to promote health and prevent disease.
To be compliant under the new regulations, a wellness program must have a reasonable chance of preventing disease and improving the health of an employee. The wellness program cannot be overly burdensome; a subterfuge for violating the ADA or other applicable discrimination laws; "highly suspect" in its method of promoting health and preventing disease; and it cannot shift medical costs to employees or simply provide employers with information to calculate future health-related costs. The regulations further provide that wellness programs involving measurements, tests, screenings, or collections of health information that do not provide advice, results, or follow-up information to improve the health of the participating employee are not reasonably designed, unless the information collected is used to create a program that addresses at least one subset of the identified conditions.
2. Participation in wellness programs must be "voluntary."
The EEOC has identified several factors that make a program voluntary. Specifically, employers cannot make employees participate in a wellness program; cannot retaliate against employees who do not participate; and health benefits cannot be conditioned upon the employees' participation. Employers must provide a written notice to employees about the program which includes information on how the medical information will be obtained, used and disclosed. The EEOC has created sample notices for employers to review. In addition, the incentives and penalties for participating or not participating in a wellness program cannot exceed thirty (30) percent of self-only coverage.
3. Confidentiality Requirements
The EEOC has stated that the final rule on wellness programs does not change the prior confidentiality requirements that were part of the existing ADA regulations. However, two new requirements have been added. Specifically, an employer generally may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information or to waive any confidentiality protections as a condition for participating in a wellness program. In addition, an employer may only receive information collected from a wellness program "in aggregate form that does not disclose, and is not reasonably likely to disclose the identity of specific individuals except as necessary to administer a health plan."
Employers should familiar themselves with these new regulations to ensure that their wellness programs are in compliance with federal law. TheADA rules and the GINA rules are available in the Federal Register at:
Copyright 2016 UPMC Health Plan Inc. All rights reserved.
16SAM0759
"Highest Member Satisfaction
among Commercial Health Plans
in Pennsylvania"
- J.D. Power
UPMC Health Plan received the highest numerical score among commercial health plans in Pennsylvania in the J.D. Power 2016 U.S. Member Health Plan Study, based on 31,867 responses from nine plans measuring experiences and perceptions of members surveyed from October to December 2015. Your experience may vary. Visit jdpower.com.
