By Brooke A. Colaizzi

Today the EEOC issued its final regulations providing guidance on wellness program incentives under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The ADA regulations address wellness program incentives generally, while the GINA regulations address the specific issue of incentives paid to an employee’s spouse who provides information related to the manifestation of a disease or disorder in responding to a health risk assessment (HRA).

Any wellness program that asks employees to respond to disability-related inquiries or undergo a medical examination must be “voluntary” under the ADA in that the program cannot compel participation nor penalize nonparticipation. The EEOC has concluded that limited incentives or penalties are permissible without making the program involuntary.

GINA generally prohibits employers from giving incentives in exchange for genetic information. The definition of genetic information includes the manifestation of a disease or disorder in a family member. Spouses are included in the definition of “family member” even though no genetic connection exists between the spouses. The EEOC now permits employers to give limited incentives to employees and their spouses when the spouses participate in a wellness program and provide information about their current health (the manifestation of a disease or disorder).

Specific provisions of the regulations include the following:

• For any wellness program to be “voluntary” under the ADA, incentives or penalties cannot exceed 30% of the cost of employee-only coverage (both the employer’s portion and the employee’s portion).
• Under GINA, incentives for a spouse to provide information about their current health are also limited to 30% of the cost of employee-only coverage.
• Employers are not allowed to otherwise request a spouse’s genetic information or to request any genetic information about an employee’s child.
• Employers may not condition access to health insurance or any package of health insurance benefits on an employee responding to a disability-related inquiry or submitting to a medical examination or on a spouse providing information about his or her current health.
• Employers are not required to allow employees or spouses to submit general certifications from doctors in lieu of participating in an HRA or biometric screening.
• For all wellness programs that include disability-related inquiries and/or medical examinations, employers must give employees a notice explaining what information is collected, how it will be used, who will receive it, the restrictions on its disclosure, and the methods used to prevent improper disclosure. The EEOC will post a sample notice on its website within 30 days.
• Employers cannot request employees to agree to the sale, exchange, sharing, transfer, or other disclosure of medical or genetic information or to waive confidentiality provisions as a condition of wellness program participation or to receive an incentive.
• The EEOC specifically rejects the conclusion of several courts that the ADA’s insurance safe harbor provision applies to incentives under the ADA.

Both sets of regulations are effective for the first full plan year beginning on or after January 1, 2017.

Now is the time to evaluate your wellness program for compliance with these regulations. If you have questions about the regulations or whether or not your plan complies, contact any Sherman & Howard Labor and Employment attorney.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                   May 16, 2016