EEOC on Workplace Wellness Programs: Final Rules Announced

Earlier this month, the Equal Employment Opportunity Commission issued its final rules on employer wellness programs.  The final rules, which go into effect in January 2017, provide guidance on how workplace wellness programs can comply with the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA).

The final rules address a number of issues, including the amount of incentives that an employer may offer to employees for participating in a wellness program.  Prior to the final rules, for example, the ADA regulations provided that employers could ask health-related questions and conduct medical examinations as part of a “voluntary” wellness program.  The regulations did not, however, define the term “voluntary” or address whether the offer of an incentive made a program involuntary.

The final rules clarify that a wellness program that requires employees to answer disability-related questions or to undergo medical examinations may offer incentives of up to 30 percent of the total cost for self-only coverage.  The 30 percent incentive limit brings the regulations in line with HIPAA, which applies the same incentive limit to health-contingent programs that require employees to achieve certain outcomes.

 
The final rules also set out a number of other requirements that must be met for a wellness program to be considered voluntary.  For example, employers may not deny an employee access to health coverage if the employee chooses not to participate in a wellness program.  Employers must also provide a notice that clearly explains what medical information will be obtained from employees in the wellness program.  The final rules also require that wellness programs be “reasonably designed to promote health or prevent disease” – in other words, a wellness program must actually promote health and cannot include burdensome time requirements for participation, involve unreasonably intrusive procedures, or be used to shift insurance costs or to gain sensitive medical information that would otherwise be in violation of the law.  In addition, the final rules include two confidentiality provisions.  The first generally provides that information from wellness programs may be disclosed to employers only in an aggregate form that does not disclose specific individuals.  The second provision prohibits employers from requiring employees to agree to the sale of health information or the waiver of confidentiality as a condition for participating in a wellness program or receiving an incentive

White House Announces New Disability Resource Guide

A new resource guide for employers to use in working with individuals with disabilities is now available.  The new guide, available here and called Recruiting, Hiring, Retaining and Promoting People with Disabilities, was announced by the White House last week and is the product of a cross-agency initiative to increase equal employment opportunities for individuals with disabilities. Although authored primarily by the Equal Employment Opportunity Commission, the guide includes participation from the Departments of Education, Labor, Health and Human Services, Justice, and others.

As a quick reference tool, employers will likely find this guide helpful.  It provides answers to several frequently asked questions and suggests best practices for employers to use when hiring individuals with disabilities and maintaining those individuals over the course of the employment relationship. Perhaps most useful, however, the guide includes embedded links to other materials with additional information, including agency-specific materials produced by the EEOC and Department of Labor.

In announcing the new guide, the White House noted that 56.7 million Americans, or 19% of the American population, live with a disability.  Given the expanded definition of disability under the Americans with Disabilities Act Amendments Act of 2008, that number is not likely to decrease.  Employers may therefore find this guide a useful additional tool in their efforts to remain educated on disability-related employment issues.