Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have had problems with whether and to what extent they could incentivize employees to participate in certain “wellness programs”. The position of the Equal Employment Opportunity Commission (EEOC) on these programs has been a major driver of these struggles, largely due to concerns about whether such programs are “voluntary”.
On January 7, the EEOC proposed a new approach that could give employers security, especially as many employers wonder about incentives to encourage workers to get a COVID-19 vaccine. The agency proposed regulations under the Americans With Disabilities Act (ADA) and the Non-Discrimination Genetic Information Act (GINA) that would provide a brief overview of wellness programs and the EEOC’s evolving position on them for those interested.
A (very) short story
In short, the EEOC set out its position on voluntariness in its 2000 Enforcement Guidelines on Disability-Related Screening and Medical Screening of Workers under the American With Disabilities Act: A wellness program is “voluntary” as long as an employer “does not require participation” Employees who do not participate will not be penalized. “See Q / A 22.
During this time and in the future, however, other federal agencies that regulated group health plans (Health and Social Services, Department of Labor and Internal Revenue Service) provided employers with a regulatory avenue to encourage employees to participate in certain wellness programs. One version of these rules has been codified in the Affordable Care Act (referred to herein as the “ACA / HIPAA Rules”), demonstrating the intent of Congress to allow such incentives despite being governed by other federal laws such as ADA and GINA. The EEOC’s initial attempt to regulate its position on wellness programs in line with ACA / HIPAA rules failed when its rules on incentives were overturned by a court. These new proposals for regulations take a different approach.
The proposed regulations.
The EEOC proposed two regulations – one under the ADA and one under the GINA:
Under the rule proposed by the ADA, a wellness program is a health promotion or disease prevention program that includes disabled-related inquiries or medical exams. Inquiries related to disabilities, such as B. Health risk assessments and biometric exams, generally include a series of questions that are “likely to provide information about a disability,” while medical examinations are procedures or tests that seek information about a person’s physical or mental impairment or health . Programs that do not include disability-related inquiries or medical examinations (e.g., rewarding employees for attending a smoking cessation class) are not subject to the ADA proposed rule. The rule would also include essentially the same sub-categories of wellness programs as under the ACA / HIPAA rules – participatory and health-dependent.
The rule proposed by the ADA preserves the spirit of the EEOC’s basic position on voluntariness. If too high an incentive is allowed, employees will feel compelled to disclose proprietary medical information. However, by changing a previous position on ADA’s “safe haven”, EEOC is proposing to bring its position closer to ACA / HIPAA rules.
The proposed general rule for voluntary wellness programs – only de minimis incentives allowed. The general rule for covered wellness programs under the rule proposed by the ADA is that employers cannot provide more than de minimis incentives to encourage employees to participate. Such programs cannot either
Oblige employees to participate,
Deny employees access to health insurance under one of their group health plans,
Limit coverage under their group health plans for such employees unless otherwise permitted, or
Take other adverse measures against employees who choose not to participate in the wellness program.
Medical information collected in connection with such programs in relation to an employee must also be kept separately as a confidential medical record, although in the proposed rule the EEOC is removing the confidentiality statement under the 2016 regulations. And of course, meeting the requirements in the proposed rule would not relieve compliance with other laws such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, and the Age Discrimination in Employment Act of 1967.
But what, according to the EEOC, is a de minimis incentive?
The agency offers two examples: a water bottle or a gift card of modest value. It found that charging an employee $ 50 more per month for health insurance (or the “carrot” approach, which cuts the health insurance fee by $ 50 per month) would be too much of an incentive. in both cases a total of 600 USD per year) violate the ADA. A gym employee’s annual membership is also believed to be paid or an employee rewarded with airline tickets, although the price of some water bottles these days may be higher than the cost of an airline ticket.
The “safe harbor” exception to the de minimis rule. The rule proposed by the ADA would interpret its statutory safe harbor provision of the ADA to the effect that it constitutes an exception to the proposed de minimis incentive rule. In particular, health-related wellness programs that (i) are part of or are considered to be part of group health plans and (ii) are subject to and comply with the applicable provisions of the ACA / HIPAA Wellness Rule may offer incentives that are more than de minimis, unless they are greater than allowed under the ACA / HIPAA wellness rules. This exception does not extend to the other ADA voluntary requirements summarized above, but only to the maximum level of incentive.
In particular, the EEOC has not extended this exemption to include participatory wellness programs. For example, this is a wellness program that simply uses a health risk assessment based on self-reporting, or requires employees to undergo biometric screening without tracking their results or meeting health goals in order to be rewarded receive or avoid a penalty. Such programs may not give employers an accurate picture of the health of a particular worker or the health of the workforce and, therefore, may not provide the kind of quantifiable data needed to classify or manage risks and functions covered by the safe haven.
Determining whether a health-related wellness program is part of or qualified as part of a group health plan is based on certain factors, including whether the program:
- is only offered to employees enrolled in an employer-sponsored group health plan;
- binds all incentives to share costs or reduce (or increase) premiums within the framework of the group health plan;
- is offered by a seller who has a contract with the group health plan or insurer; and
- is a coverage period as part of a group health plan.
In general, the GINA prohibits employers from collecting “genetic information” from employees with very limited exceptions. While an in-depth discussion of GINA and the definition of genetic information is beyond the scope of this post, a feature of some wellness programs that involve family members throws up an interesting fold under GINA. In particular, some programs provide incentives for employees when their family member provides information about the family member’s own manifestation of illness or disorder. According to GINA, such information is considered to be the employee’s genetic information, ie the employee’s family history.
For reasons similar to the above related to the repeal of the ADA wellness regulations, the 2016 EEOC GINA regulations have also been repealed, which allowed employees to have certain incentives for recording the manifestation of any illness or disorder in the employee’s spouse . In conjunction with the proposed ADA regulations discussed above, the Agency is also proposing a revised approach to incentives under the GINA.
The scheme proposed by GINA would allow an employer to incentivize workers if their family members provide information about the manifestation of illness or disorders by the family members, provided that:
The incentive is de minimis (see discussion of the rules proposed by the ADA)
The other rules for providing health or genetic services are met, including compliance with licensing requirements.
This approach significantly reduces the incentive allowed under the GINA provisions of EEOC 2016. However, the proposed regime would extend to the application of the incentive to all family members beyond the spouses. Of course, other rules still apply. For example, the rule proposed by GINA does not provide incentives for family members to provide their own genetic information, including the results of genetic testing. Neither does it change anything about the absolute ban on the use of genetic information in employment decisions.
Jackson Lewis PC © 2020National Law Review, Volume XI, Number 11