EEOC Issues Rules on Employer Wellness Plan Incentives

The Equal Employment Opportunity Commission (EEOC) recently issued two rules on “how Title I of the Americans with Disabilities Act (ADA, Pub. Law 101-336, 7/26/90) and Title II of the Genetic Information Nondiscrimination Act (GINA, Pub. L. 110-233, 5/21/08) apply to wellness programs offered by employers that request health information from employees and their spouses.”  The ADA rule [81 Fed. Reg. 31126, 5/17/16] specifies such wellness programs that are part of a group health plan “may offer incentives of up to 30 percent of the total cost of self-only coverage.”  The GINA rule [81 Fed. Reg. 31143, 5/17/16] specifies “that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.”  Wellness programs part of a group health plan still must comply with Health Insurance Portability and Accountability Act (HIPAA) nondiscrimination provisions [Pub. L. 104-191, Title I, Sec. 101, 8/21/96;  29 U.S.C. 1182], as amended by the Patient Protection and Affordable Care Act [Pub. Law 111-148, Title 1, Sec. 1201, 3/23/10;  42 U.S.C. 300gg], as well as HIPAA Privacy, Security, and Breach notification requirements.  Both of the new EEOC rules “prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive.  Both rules also specify “that information from wellness programs may be disclosed to employers only in aggregate terms.”  The new EEOC rules will be effective 7/18/16, and will become applicable 1/1/17.  For more information, see the 5/16/16 EEOC Press Release.