Preliminary EEOC Guidance on Avoiding Wellness Discrimination
The Equal Employment Opportunity Commission (EEOC) recently laid its cards on the table by giving a detailed description of when wellness programs step over the line and violate the Americans with Disabilities Act (ADA). Here’s the latest.
According to the most recent “Wellness in the Workplace” study produced by Optum — a wellness services provider — nearly two-thirds of employers have placed a priority on establishing a “culture of health” and hope to achieve that via their wellness programs.
While most employers have been keeping their spending on wellness programs level, more than one-third are planning to increase their investment over the next two years. Their primary goals are reducing health costs, improving employees’ quality of life and productivity.
Use of Biometric Screening Rises
More than 40 percent of surveyed employers offered biometric screenings last year, up from 34 percent in 2013. Participation incentives are following the same trend, although their prevalence is much greater: 87 percent of employers used them last year compared to 81 percent the year before.
The EEOC’s latest guidance on the boundaries of nondiscriminatory wellness incentives comes in the form of a “notice of proposed rulemaking.” You can comment on the proposed regulations until June 19, but it is unlikely the regulations will change substantially.
Here are the main points spelled out in the proposed regulations, adapted from an EEOC summary.
1. Wellness programs must be “reasonably designed” to promote health or prevent disease:
- They must have “a reasonable chance of improving health or preventing disease in participating employees, must not be unduly burdensome to employees.”
- A program is “reasonably designed” if it collects employee medical data to give them insights into their health risks. Similarly, it is reasonable for you to use aggregated health data to customize your wellness program to target particular health problems common among your staff.
- Conversely, a program is not “reasonably designed” if it collects employee health data without giving them feedback, or without using the information to customize your wellness program.
2. Employees must not be forced to participate:
- Your wellness program must be voluntary, and employees may not be denied health benefits or be given diminished benefits or face any disciplinary consequences if they don’t participate or achieve any particular health outcomes.
- You must give employees a notice that describes the medical information that will be collected as part of the wellness program, who will receive it, how the information will be used and how it will be kept confidential.
3. You can offer incentives for employees to participate in wellness programs or to achieve certain health outcomes, but those incentives must be limited:
- The participation or health outcome incentive amount cannot exceed 30 percent of the total cost of employee-only coverage.
4. Confidentiality must be maintained for medical information secured via a wellness program:
- In general, you should only receive medical information in aggregate form that “does not disclose, and is not reasonably likely to disclose,” the identity of individual employees.
- Wellness programs independent of your health benefit plan generally will satisfy the confidentiality requirements if they satisfy the Health Insurance Portability and Accountability Act (HIPAA) privacy rule.
- If your company is not a “HIPAA-covered entity,” in most cases you will satisfy ADA requirements by signing a certification (and abiding by it) that you will not use or disclose “individually identifiable” medical information for employment purposes.
- It is advisable to train employees who are handling or have access to confidential medical information, in the encryption of information in electronic form and to promptly report any breaches in confidentiality.
5. You must give “reasonable accommodations” that allow employees with disabilities to participate in your wellness program and earn any incentives you offer:
- Suppose, for example, you provide an incentive for workers to attend a nutrition class. If your workforce includes a deaf employee and it is necessary for that employee to participate in the class, you must provide a sign language interpreter (absent “undue hardship” for the organization).
- Similarly, if you have an employee with a vision impairment, you’ll need to provide written program materials in an alternate format, such as large print or Braille (again, absent undue hardship).
- Yet another example: If an employee’s disability would make drawing blood dangerous, the program would need to provide an alternative to a blood test to secure the required biometric data.
Achieving success with a wellness program requires more than simply steering clear of discrimination accusations. But improving employee health is a big enough challenge without having to defend yourself against a federal lawsuit at the same time. The latest EEOC guidance can help you avoid that fate.