Wellness programs sometimes use medical questionnaires or health risk assessments (HRA) and biometric screenings to determine an employee's health risk factors, such as weight, cholesterol and blood pressure. Wellness programs can also include health education programs, such as weight management classes and smoking cessation programs.

In some cases, the programs offer financial or other incentives for employees who participate and/or achieve certain outcomes.

• Wellness programs are an area of increased attention and enforcement by federal agencies. This is a rapidly changing area of the law. Employers who have questions regarding implementation of their wellness programs should seek the advice of counsel.

Wellness Programs and the ADA and GINA

Both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) impose limits on wellness programs. HIPAA and the Affordable Care Act (ACA) also contain rules regarding wellness programs. For more information on the HIPAA/ACA wellness program rules, see Federal Health Care Reform.

The ADA and GINA apply to employers with 15 or more employees.

The ADA prohibits employers from discriminating against applicants and employees on the basis of disability, and generally prohibits employers from obtaining medical information from applicants and employees. However, the ADA does allow employers to inquire about employees' health information and conduct medical examinations as part of a voluntary employee health program, which includes wellness programs. If an employer offers a wellness program, the ADA prohibits the employer from denying employees access to the program because of a disability, and requires employers to provide reasonable accommodations to employees with disabilities so that they can participate in wellness programs.

The GINA prohibits the use of genetic information, which includes an employee's family medical history, in making employment decisions and limits an employer's ability to request, acquire or disclose genetic information.

The GINA has an exception that allows employers to acquire genetic information about an employee or his or her family members when the employer offers voluntary health or genetic services, including a wellness program, to employees and their family members. Family member include certain blood relatives as well as spouses and adopted children.

The GINA requires that an individual provide knowing, voluntary and written authorization before genetic information can be disclosed.

Wellness Programs and Incentives

Beginning in 2011, the federal Equal Employment Opportunity Commission targeted wellness programs that financially penalized employees for not participating in the programs. The EEOC alleged that penalties, such as increased health insurance premiums, rendered the wellness programs involuntary and violated GINA and the ADA.

ADA and GINA Final Rule

The EEOC finalized two separate rules addressing how the ADA and GINA apply to employee health programs, including what constitutes a health program, what it means for a program to be voluntary, and the extent to which employers can offer incentives as part of wellness programs.

The ADA rules and the GINA rules are available at the EEOC website.

Programs Must Promote Health or Prevent Disease

The final regulations clarify that any employee health programs that include disability-related inquiries, medical examinations, or health or genetic services must be reasonably designed to promote health or prevent disease. A program will satisfy this standard if the program:1

• Has a reasonable chance of improving the health of, or preventing disease in, participating employees;
• Is not overly burdensome;
• Is not highly suspect in the method chosen to promote health or prevent disease; and
• Is not a subterfuge for violating the ADA, GINA, or any other laws preventing discrimination in employment.

Programs Must Be Voluntary

The regulations explain that for a wellness program to be voluntary, an employer cannot:2

• Require employees to participate;
• Deny employees health coverage or benefits, or limit the extent of benefits provided, if employees do not participate; or
• Take any adverse action or retaliate, interfere with, coerce, intimidate, or threaten employees.

Notice Must Be Given to Employees

The wellness program must also provide employees with a notice that is written so that the employee receiving it is reasonably likely to understand it. The notice must state:3

• What information will be collected;
• The purpose for which the information will be used;
• Restrictions on the disclosure of the information provided;
• Who the information will be shared with; and
• How the information will be kept confidential.

Limits on Incentives

The final regulations also set limits on incentives that can be offered by wellness programs that require employees to answer disability-related questions or undergo medical exams to earn a reward or avoid a penalty. The limit in the ADA regulation applies to incentives offered to an employee for participation in wellness programs. The limit in the GINA rule applies to incentives offered to an employee whose spouse provides health information through a wellness program.

The limits apply to both financial and in-kind incentives.

• A lawsuit was filed against the EEOC in federal court challenging the financial incentive portions of the EEOC’s rules. The court vacated the financial incentive portions of the rules effective January 1, 2019. The EEOC had indicated that it would issue a notice of proposed rulemaking and final rules, but at the time of publication it had not done so. Employers utilizing financial incentives should consult counsel to ensure compliance.

The regulations state that use of incentives in an employee wellness program, whether in the form of a reward or penalty, will not render the program involuntary if the maximum allowable incentive available under the program does not exceed:4

• Thirty percent of the total cost of self-only coverage of the group health plan in which the employee is enrolled when participation in the wellness program is limited to employees enrolled in the plan;
• Thirty percent of the total cost of self-only coverage of the covered entity's group health plan, where the covered entity offers only one group health plan and participation in a wellness program is offered to all employees regardless of whether they are enrolled in the plan;
• Thirty percent of the total cost of the lowest cost self-only coverage under a major medical group health plan where the covered entity offers more than one group health plan but participation in the wellness program is offered to employees whether or not they are enrolled in a particular plan; and
• Thirty percent of the cost of self-only coverage under the second lowest cost Silver Plan for a 40-year-old non-smoker on the state or federal health care Exchange in the location that the covered entity identifies as its principal place of business if the covered entity does not offer a group health plan or group health insurance coverage.

The final rules clarify that incentives are not allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee's spouse and an employee's children.

Confidentiality

Employers with wellness programs must ensure that any information collected is kept confidential in accordance with ADA and GINA requirements. Medical information collected as a part of a wellness program may be disclosed to employers only in an aggregate form that does not reveal the employees' identities. Best practices for securing confidentiality are provided in interpretative guidance to the rule.

Discrimination

Wellness programs may never be used to discriminate based on disability, and safeguards must be in place to prevent such discrimination. Employers must provide disabled individuals with reasonable accommodations that allow the individuals to participate in wellness programs and to earn whatever incentives an employer offers.

1. 29 CFR secs. 1630.14(d)(1), 1635.8(b)(2)(i)(A)

2. 29 CFR sec. 1630.14(d)(2)

3. 29 CFR sec. 1630.14(d)(2)

4. 29 CFR sec. 1630.14(d)(3)