EEOC issues final rules on workplace wellness programs

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Employers may offer employees and their spouses incentives for joining workplace wellness programs up to 30% of their individual “self-only” health coverage, the Equal Employment Opportunity Commission said in final rules released Monday.

Many healthcare entities have started wellness programs as ways to motivate employees and keep health insurance costs down. The incentive caps aim to clear up a question of whether offering incentives for employees to join a wellness program and submit their and their families' health information would make the programs involuntary — and in violation of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

The rules' financial incentives for participation should be a “welcome development” for employers seeking to spur participation in their wellness programs, Christine Lyon, a partner at San Francisco-based law firm Morrison & Foerster, told McKnight's via email. But employers should still be wary about requesting health-related information, Lyon said.

“Employers need to give careful thought to whether their wellness programs will be requesting health-related information or family medical history, even on a voluntary basis,” Lyon said. “If so, employers will need to implement special measures to comply with the restrictions under these new regulations, as well as existing laws.”

Employers may also want to consider using a third-party provider to implement a wellness program as a way to limit their potential access to health information, and the risks that accompany it, Lyon said.

The final rules implement safeguards for wellness programs required by the ADA and GINA, including a provision that blocks incentives given in exchange for the health information of employees' children. Employers are also blocked from giving incentives in exchange for specific genetic information, like family medical history or results of genetic tests, from any employee, employee's spouse or children.

“These restrictions are intended to help address concerns that wellness programs might result in discrimination against employees based on their health conditions,” Lyon noted.

Consumer and disability rights advocates raised concerns about the rules when they were first proposed last year, saying the programs can't be considered voluntary with the level of incentives proposed — and the penalty of having those incentives withheld if an employee chooses not to participate. Many advocates' opinions on the rules appear unchanged with the final release, Kaiser Health News reported.