On Monday, May 16, 2016, the EEOC published their final rules on wellness plans with respect to the American’s with Disability Act (ADA) and the Genetic Information Non-discrimination Act (GINA).  These final rules apply to employer wellness programs for plan years that begin on or after January 1, 2017.

Background

In 2015, the EEOC published separate sets of proposed rules on the interaction of wellness programs and the ADA, and on the interaction between wellness programs and GINA.  Public comment was sought on these proposed rules, as well as possible changes.  In the case of the ADA rules, tens of thousands of comments were submitted, while with the GINA rules, a few thousand comments were submitted.

The Final Rules

Both the ADA and GINA final rules largely track with the proposed rules, with a few clarifications.  With respect to the ADA rules, the following important points remain:

  • Wellness programs (whether participatory or not) that reward or penalize employees will have to keep the amount of the reward/penalty to be no more than 30% of the employee-only cost of coverage under the plan (including both the employer and employee contributions.)  This applies regardless of whether the employee has single coverage or family coverage.  One clarification in the final rules is that if the employer offers multiple plan options, the reward/penalty has to be based off of 30% of the cost of single coverage of the lowest cost plan option.

  • The prohibition against “gatekeeper” programs remains in place.  Employers are barred from requiring employees to participate in a wellness program or attain a specific health goal in order to be able to elect a health plan.  All health plan options need to be made available to all eligible employees, regardless of whether they participate in the wellness program or not.

  • Employers wishing to charge tobacco users a 50% penalty, as allowed under the ACA’s wellness rules, can do so only if they are simply asking whether the employee is a tobacco user, not as any part of a tobacco cessation program.  For instance, if an employer is simply asking employees whether they are a tobacco user, they can charge a surcharge for people who are tobacco users that can be as much as 50% of the employee-only rate under the lowest cost plan option.  However, if the employer is using a biometric screen to detect tobacco usage, they are capped at 30% of lowest-cost employee only coverage.

  • A new notice requirement has been added.  If a wellness program includes questioning employees regarding disability-related items or to undergo medical examinations, the employer must provide a notice that explains what medical information will be collected, how they will use it, who will receives it, and what restrictions will apply to the disclosure of that information.  The EEOC is to provide a sample notice on its website, though it is not yet available.

The final GINA rules largely track with the ADA rules.  However, while the ADA rules are specifically focused on preventing employers from discriminating against employees based on disability, the GINA rules prohibit employers from discriminating against people based on their genetic information.  For instance, if an employee has to provide current or past medical history in order to receive a reward (such as reduced premiums), the GINA rules will apply.  One important difference is worth noting:

  • If the employer requires the spouse to provide information covered by GINA and this results in a reduced premium contribution, the spousal “reward” has to be capped at 30% of the employee-only rate of the plan (or of the lowest-cost plan, if multiple plans are offered.)  The same rule would apply to the employee, in that their reward would also be limited to no more than 30% of the employee-only premium.  

Conclusion

Employers sponsoring wellness programs will need to adopt to these new rules no later than their first renewal on or after January 2, 2017. More information on these rules can be found at: