Many employers have turned to employee wellness programs to curtail rising health care costs and improve productivity. These wellness programs typically involve health screenings and/or services to aid in reducing health risks (e.g. tobacco use, blood pressure), often coupled with financial incentives for the employee’s participation.
Over the past few years, the Equal Employment Opportunity Commission (EEOC) has taken aim at wellness programs and brought a number of lawsuits challenging their legality under discrimination laws such as the Americans with Disabilities Act of 1990 (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA), suffering a string of defeats (click here and here) in the process. Last month, the EEOC issued final rules addressing the interaction between wellness programs and the ADA and GINA, and explaining how employers can comply with these laws. The final rules have been met with criticism by many who believe that the rules are inconsistent with the provisions supporting broader use of wellness plans and incentives contained in the Affordable Care Act (ACA). Still, these rules, found here and here become effective in January 2017.
The final rules require, among other things, that employers provide an annual notice to employees, informing them “what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.” Employers with wellness programs must provide this notice to employees by the first day of the plan year beginning on or after January 1, 2017. It is important that employers either incorporate the required notice information into those already used (such as for HIPAA) or provide a separate notice with this information, otherwise their wellness programs will not be deemed voluntary. On June 16, 2016, the EEOC released a sample notice for employers to use in connection with wellness programs.