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EEOC Wellness Regulations Survive AARP Challenge
01/04/2017
By: Jason Lacey

A federal court in Washington, D.C. has declined to issue an order that would have halted implementation of the EEOC’s wellness plan regulations under the ADA and GINA. The regulations had been challenged by AARP on the grounds that they failed to adequately protect workers’ rights. However, the court concluded there was no risk of "irreparable harm" to workers in allowing the regulations to remain on the books. This means the regulations remain in force and will apply as scheduled. 

The EEOC’s regulations are generally applicable to wellness programs beginning with the 2017 plan year. The regulations limit the incentives that employers may offer in connection with a wellness program that involves a medical examination or disability-related inquiry. Most wellness programs that involve a health risk assessment or biometric screening are covered. The incentive cannot exceed 30% of the cost of employee-only coverage under the related health plan -- or twice that amount in the case of plans that offer incentives to both employees and their spouses.The regulations also impose notice and confidentiality requirements, in addition to limiting the amount of incentives.

The EEOC’s rules apply in addition to other wellness plan rules under HIPAA and the ACA, with sometimes inconsistent results. For example:

  • Under the HIPAA and ACA regulations, there is no limit on the amount of the incentive that can be offered in a “participation only” wellness program involving completion of a health risk assessment and biometric screening, but the same wellness program generally is subject to      Continue Reading...
 
EEOC Issues Final Wellness Regulations
05/21/2016
By: Jason Lacey

The EEOC has issued final regulations under the ADA and GINA that address the extent to which employers may use incentives to encourage employees and their spouses to participate in wellness programs that involve disability-related inquiries or medical examinations. Although the regulations allow limited incentives, there are a number of conditions and restrictions. And there are some important differences between the EEOC's rules and other rules governing wellness programs, such as guidance under HIPAA and the ACA. Here are the highlights.

What Wellness Plans Are Covered?

These regulations apply to any wellness plan that involves a disability-related inquiry or medical examination. This will include most wellness plans that require completion of a health risk assessment or biometric screening. It also includes tobacco-related wellness plans that involve any type of medical test to screen for the presence of nicotine, but it does not include tobacco-related programs that merely ask an employee to certify whether they use tobacco (and do not require any other medical examinations).

In an important change from the proposed regulations, the final regulations apply to a wellness program without regard to whether the program is offered in connection with a group health plan. For example, an employer that offers a cash reward to employees for completing a health risk assessment or biometric screening may be subject to the limitations under the final regulations.

What Limits Apply to Wellness Incentives?

For a wellness plan covered by these regulations, the incentive offered to any employee may not exceed 30% of the full cost      Continue Reading...

 
Federal Legislation Would Clarify Wellness Plan Treatment Under ADA and GINA
03/16/2015
By: Jason Lacey

Federal legislation has been introduced that would clarify the treatment of employer wellness plans under the ADA and GINA. It is styled as the "Preserving Employee Wellness Programs Act." Under the act, any wellness plan that meets the requirements imposed by regulations issued under HIPAA and the ACA would not be treated as violating the ADA or Title I or Title II of GINA solely because the plan provides a reward. 

The legislation would respond to confusion over the EEOC's position on how employer obligations under the ADA and GINA intersect with the HIPAA and ACA rules that allow providing a reward (or penalty) to employees who participate in a "health-contingent" wellness program. Although the EEOC has never taken a formal regulatory position on the issue, it has sued several employers over their wellness programs, including at least one program that appeared to satisfy the requirements under HIPAA and the ACA (see prior articles here, here, and here). 

The EEOC is said to be working on a set of regulations to address this issue that may be near release. Employers will want to keep an eye on both these legislative and regulatory developments, as they could have an important (and hopefully helpful) impact on wellness plan design.

A copy of Senate Bill 620, the Preserving Employee Wellness Programs Act, is here

 
DOL Updates Health Plan Self-Compliance Tools
03/07/2013
By: Jason Lacey

The DOL has updated the self-compliance tools it makes available to group health plans to include a new checklist relating to health care reform.

The health care reform checklist goes through a series of detailed questions that will help a plan sponsor confirm that it is in compliance with the key group market reforms, such as coverage of dependent children to age 26 and cost-free preventive care. There are particularly extensive provisions addressing grandfathered plan status and the SBC requirement.

A second checklist relates to the HIPAA portability provisions and related requirements for group health plans, including mental health parity. (See related prior coverage here.)

Plan sponsors or administrators would be well-advised to go through these lists once a year or so to determine if there are any areas in which their plans are deficient. It is always easier to correct problems that are identified before the DOL finds them.

 
Wellness Plans and Employee Genetic Information
07/27/2012
By: Jason Lacey

I was interviewed for and quoted in an article (subscription required) in today's Wichita Business Journal highlighting the risk that an employer's wellness program might cross the line and result in the collection of employee genetic information in violation of the federal Genetic Information Nondiscrimination Act (GINA). The article is short and so does not get into the nuances of what is permitted and what is not, but the basic point is a good one: If you're asking employees to fill out a health risk assessment or similar questionnaire, you need to be thinking about the GINA requirements.

Here are some specific points to keep in mind:

  1. If you're using a vendor to run your wellness program, they likely will understand the law, but it's still your responsibility to make sure you're in compliance. At a minimum, you'll want to review (with legal counsel) the questionnaires and other documents employees will be asked to complete to see if there are any red flags.
  2. Genetic information, as defined for purposes of GINA, is broader than you might think. Family medical history, for example, is considered genetic information.
  3. Although the safe bet is to simply not request that employees provide family medical history or other genetic information, there are circumstances when it can be ok. In general, disclosures in connection with a wellness plan that are entirely voluntary and not made in connection with health insurance enrollment or underwriting are permitted.
 


Authors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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