By Ellice Switzer Technical Assistance Specialist, EARN
There are several laws that have implications for employers who offer wellness programs. Among them:
To date, the Equal Employment Opportunity Commission (EEOC) has not issued specific guidance to employers in relation to the intersection of wellness programs and the ADA, but in a recent meeting, the Commission stressed that wellness programs need to be created and offered in a way that does not put the employer at risk of violating equal employment opportunity laws. It is especially important that employers are able to accurately define whether or not a wellness program would be considered “voluntary” under the law, in order to avoid legal pitfalls. The implementation of the Affordable Care Act will continue to spur the proliferation of workplace wellness programs. The final rules regarding the Affordable Care Act and wellness program incentives, which were issued jointly by the Departments of Labor, Health and Human Services (HHS) and the Treasury, provide requirements for wellness programs offered through employment-based group health plan coverage. Among the requirements for health-contingent wellness programs, these rules state that programs must be “reasonably designed” and employers must offer a “reasonable alternative” to obtaining the full reward for employees who do not meet the initial “health-contingent” standard. Visit EBSA’s website to access the complete regulations at www.dol.gov/ebsa/healthreform. Title I of GINA, which generally prohibits discrimination in employment-based group health plan coverage, is administered by the Departments of Labor, HHS, and Treasury. Title II of GINA, which prohibits discrimination in employment based on genetic information, is administered by the EEOC. Employers should also be careful to ensure compliance with GINA if collecting information related to family history which would include genetic information and could expose the employer to potential GINA violations. Employers should consider adding a GINA disclosure to any Health Reimbursement Arrangement (HRA), and ensure that protected health information cannot be accessed by managers and supervisors. The GINA disclosure should inform employees that they are not required to disclose genetic information regarding themselves or their dependents, and that any disclosure of health information is completely voluntary. Giving thoughtful care and consideration to practices and policies around workplace wellness programs will help to maximize employee access and benefit from the program, while limiting risk to the employer.