EEOC Guidance on Wellness Programs Under GINA and the ADA

On May 17, 2016, the EEOC issued two final rules (one under Title II of the Genetic Information  Nondiscrimination Act (GINA) and the other under Title I of the Americans with Disabilities Act (ADA)) clarifying certain aspects of employer wellness programs.

Wellness programs typically involve an employer offering its employees health promotion and disease prevention programs and activities. Some wellness programs are part of an employer-sponsored group health plan while others are independent. Many of these programs ask employees to answer questions on a health risk assessment and/or undergo biometric screenings for risk factors (such as high blood pressure or cholesterol). Some provide educational health-related information or programs that may include nutrition classes, weight loss and smoking cessation programs, onsite exercise facilities, and/or coaching to help employees meet health goals. Some employers also extend wellness programs to employees’ family members.

Generally, GINA prevents employers from requiring employees to provide their genetic information as a condition of receiving wellness program incentives.  Because information about the current or past health status of a spouse or other family member is considered genetic information about the employee, the GINA regulations could be read as prohibiting employers from offering incentives in return for a spouse providing his or her current or past health information. The new GINA rule explains how certain wellness programs that include employees’ spouses may lawfully offer incentives for spousal information under GINA and sets limits on the incentives that may be offered.

Generally, the ADA prohibits employers from discriminating against employees on the basis of disability. While the ADA generally restricts employers from obtaining medical information from employees, it does allow them to make inquiries about employees’ health or perform medical examinations that are part of a voluntary employee health program.  However, the rules governing the ADA did not define the term “voluntary” or explain what constitutes a “health program” and did not specify whether the ADA allows employers to offer incentives to encourage employees to participate in such programs.  The new ADA rule provides guidance on the extent to which employers may offer incentives to employees to participate in wellness programs that ask them to answer disability-related questions or undergo medical examinations and also explains the differences between the ADA’s requirements for voluntary health programs and other federal laws.  Employers interested in how these regulations may impact their wellness programs should contact their insurance advisors or legal counsel.

Questions related to employer wellness programs? Contact Heather Brickman or Barb Erickson.

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