On April 16th the Equal Employment Opportunity Commission, EEOC, released long awaited proposed rules on how the Americans with Disability Act, ADA, apply to employer wellness programs. Although there are some differences with the HIPAA regulations on employer based wellness programs, the proposed rules indicate the EEOC’s intent to provide some consistency with the HIPAA rules which prohibit health plans from discriminating against individuals based on a “health factor”.
The proposed rules explain how the ADA applies to employee wellness programs and include questions about employees' health (such as health risk assessments) and medical examinations (such as screening for high cholesterol, high blood pressure or blood glucose levels). To be acceptable, such programs must contain the following elements:
· Reasonably designed to promote health or prevent disease. A program that collects information on health risk assessments or through other means must provide feedback to employees about their health risk or the aggregate data must be used by the employer to design a wellness program to improve the health of their employees without being overly burdensome.
· Voluntary participation
- may not require employees to participate;
- may not deny access to health coverage or generally limit coverage under its health plans for non-participation; and
- may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).
· Reasonable accommodations must be provided to enable employees with disabilities to participate and earn incentives.
· A notice requirement 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.
· Confidentiality requirements apply: employers are required to keep data collected as part of the program private and provide employees that opt for it with reasonable alternatives.
· Maximum allowable financial incentives for wellness programs that ask disability-related questions or conducting medical examinations or for a health-contingent program that requires participants to satisfy a standard related to a health factor may not exceed 30 percent of the total cost of employee-only coverage.
A biometric screening or exam that tests for the presence of nicotine are considered a medical exam therefore the total incentive may not be greater than 30 percent. However, smoking cessation programs that merely ask employees whether or not they use tobacco (or whether or not they ceased using tobacco upon completion of the program) can provide incentives up to 50 percent of the total cost of employee- only coverage.
The EEOC is accepting comments on the proposed rules. Further changes are expected and the final rule should be released later this year.