On 4/16/15, the EEOC issued proposed rules regarding company Wellness Programs (those included in group health plans). Specifically detailed are guidelines to be followed if a Wellness Program asks employees to answer disability-related questions, or asks an employee to participate in a medical examination. HHS has issued FAQs related to these proposed rules for Wellness Programs.
The proposed rules cover the following:
- Reconciling the differences between the current Wellness Programs under the ACA and the ADA
- Specifically, questions related to health-contingent programs; those that gather information regarding employees’ cholesterol, blood glucose, body weight, and blood pressure levels.
- How to administer wellness incentives while keeping employee information confidential and prohibiting discrimination based on health factors under the ADA.
- Voluntary participation
- Financial incentives
- Protection of employees’ health information
Wellness Program Quick Links
Wellness Program Quick Facts
Wellness Programs must be voluntary, meaning that:
- Employees cannot be required to participate in a Wellness Program that asks disability-related questions, or asks them to participate in a medical exam (think of life insurance policy questions as an example).
- Employees cannot be denied or limited group health benefits if they decide not to participate in a Wellness Program.
- Employees cannot be retaliated against (termination, demotion, coersion, etc.) if they decide not to participate in a Wellness Program.
- Employees with disabilities must be provided reasonable accommodations (ADA) that will allow them to effectively participate and earn incentives under the employer Wellness Program. The EEOC’s proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. (EEOC Press Release)
Incentives of up to 30% of the Total Cost of Employee-Only Coverage May be Offered
- These programs can include medical examinations or questions about employees’ health (such as questions on a health risk assessment).
- This limit is generally consistent with limits that HIPAA imposes on wellness programs.
- The rule also makes clear however, that the ADA provides important safeguards to employees to protect against discrimination based on disability.
- Accordingly, medical information collected as a part of a wellness program may be disclosed to employers only in aggregate form that does not reveal the employee’s identity, and must be kept confidential in accordance with ADA requirements.
Understanding the Differences Between Current Wellness Program Incentive Rules (ACA) and Those Proposed Rules (ADA)
- ADA rules do not change the current ACA rules
- A Wellness Program will need to adhere to the new ADA rules in order to be compliant.
- 30% maximum incentive will apply to the total Wellness Program, whether it’s participatory, health-contingent, or both. This is different that current health-contingent programs.
- Proposed rules do not address family member participation in Wellness Program incentives.
- Current tobacco cessation programs have a 50% maximum incentive that will apply only if new Wellness Programs ask employees about tobacco use.
Confidentiality Requirements: How Will Employee Medical Information be Used and Protected
The following statements and bulleted points are taken from the EEOC Fact Sheet for Small Business and the EEOC Question and Answers about the NPRM for Wellness Programs.
The proposed rule does not change any of the exceptions to confidentiality requirements provided in the EEOC’s existing ADA regulations but adds a new subsection. This section says that a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan.
Wellness programs that are part of a group health plan, including those administered by employers, generally are subject to HIPAA requirements that mandate certain safeguards to protect the privacy of personal health information and set limits and conditions on the uses and disclosures of that information.
- 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, as provided for by HIPAA regulations, that they will not use or disclose individually identifiable medical information for employment purposes and abiding by that certification.
- Practices such as training individuals in the handling of confidential medical information, encryption of information in electronic form, and prompt reporting of breaches in confidentiality can help assure employees that their medical information is being handled properly.
EEOC Next Steps:
Proposed rules are now open for comment through 6/16/15 (60 days from release of this proposed rule)
Additional information for this blog was taken from our partner Cigna
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