The US Equal Employment Opportunity Commission (EEOC) has issued final rules clarifying how Title 1 of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to workplace wellness programmes that offer incentives and request personal health information from employees and their spouses.
This follows proposed rules in 2015 to address the issue as to whether offering an incentive to employees and dependents for the provision of health information undermines the voluntary status of corporate wellbeing programmes.
Under the final ADA rule, wellness programmes that are part of a group health plan and ask questions about employees’ health or include medical examinations, may offer incentives of up to 30% of the total cost of self only coverage.
The ADA rule requires all wellness programmes that obtain employee medical information to be voluntary, regardless of whether they are part of a group plan. Employers may not require employees to participate and cannot deny access to health coverage to employees who choose not to participate.
Employers must also provide a notice to staff to explain what medical information will be obtained, how it will be used, and who will receive it.
The final GINA ruling states that the maximum incentive permitted for a spouse's participation may not exceed 30% of the cost of self only coverage. No incentives are allowed in exchange for current or past heath information of employees’ children or for specified genetic information of the employee and their family.
This rule applies where a portion of the incentive offered is for an employees' spouse to answer questions about their health or to undertake a medical examination.
GINA also applies to all wellness programmes, whether or not they form part of a group health plan.
Both final rules include data protection safeguards. Information from wellness programmes can only be disclosed to employers on an aggregate basis and employers cannot require employees or their families to agree to the sale, exchange, transfer or disclosure of health information to participate in a wellness programme or receive an incentive.
The final rules will come into effect in 2017.
Jenny Yang, chair at EEOC, said: “The EEOC received comments on both rules from a broad array of stakeholders and considered them carefully in developing this final rule. The commission worked to harmonise the Health Insurance Portability and Accountability Act's (HIPAA) goal of allowing incentives to encourage participation in wellness programmes with ADA and GINA provisions that require that participation in certain types of wellness programmes is voluntary. These rules make clear that the ADA and GINA provide important safeguards to employees to protect against discrimination.”
