Top 5 Ways to Apply the Final EEOC Ruling to Wellness Programs

May 18, 2016

On May 17, 2016, the Equal Employment Opportunity Commission (EEOC) issued their final rule related to wellness programs. The EEOC sought to provide consistency with the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act rules on wellness program incentives.

Offer a Health Risk Assessment and Biometric Screening

Best practice wellness programs include a health risk assessment and biometric screening as a basis for their program. The EEOC and Title I of the American Disabilities Act (ADA) allows employers to make inquiries about employee health and ask disability-related questions (such as on a health risk assessment) as part of a voluntary employee health program, as well as allows employers to offer incentives for employees to undergo medical examinations (such as a biometric screening) regardless of whether the wellness program is participatory or part of a group health plan.

Offer Incentives

The EEOC ruling allows employers to provide incentives for employees to participate in voluntary wellness programs up to 30 percent of the total cost for self-only coverage that applies to any wellness program that requires employees to answer disability-related questions or undergo medical examinations (whether it is participatory or health contingent). For example, if the total cost of self-only coverage is $7,000 then you can provide an incentive/disincentive up to $2,100.

If your company doesn’t offer a group health plan the limits still apply. In this case you use 30 percent of the cost of a 40-year-old non-smoker self-only coverage under the second lowest cost Silver Plan on the state or federal health care Exchange in your principal place of business.

Providing incentives to encourage participation not only helps the 80 percent of the population that are extrinsically motivated but continues to support and award the 20 percent who are intrinsically motivated. Nearly 90 percent of employers now offer incentives to employees who meet specific wellness criteria.

Provide Interventions

You can’t force people to change but you can provide opportunities, education and support to help them along the way and every best practice wellness program should do so. The final EEOC rule retains the proposed rule requirement that an employee health program be “reasonably designed to promote health or prevent disease.” A program cannot require an overly burdensome amount of time for participation, involve unreasonably intrusive procedures, be a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or require employees to incur significant costs for medical examinations.

Reasonably designed means that if you are asking questions on a health risk assessment, or offering biometric screenings, you also have to provide some sort of follow-up or report to the individual based on their results. A basic approach would be a print-out of their results with a range of where they fall compared to the data norms. The next level up might be a consultation with the RN/health educator to discuss the results. You might even offer a program where a health coach will outreach to the employee to provide additional education or assist in setting goals for change. Lastly, you should collect data in aggregate form to use for planning programs based on prevalent needs.

Make it Voluntary

Title I of the ADA requires employers to make all wellness programs, even those that do not obtain medical information, available to all employees, to provide reasonable accommodations (adjustments or modifications) to employees with disabilities, and to keep all medical information confidential.

The final EEOC rule lists several requirements that must be met in order for participation in a wellness program that includes disability-related inquiries or medical examinations to be considered voluntary:

• May not require any employee to participate;
  
• May not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan; and
  
• May not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes.
  

The EEOC requires that an employer provide a notice that clearly explains what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure, as well as meet incentive limits.

Lock it Up

Federal law protects confidentiality of medical information employees provide as part of a wellness program. Wellness programs can comply with the EEOC’s final rule by complying with their obligations under the HIPAA Privacy Rule, and employers can comply with their obligations by certifying that they will not use any personally identifiable information for employer purposes and abiding by that certification.

These rules not only protect employees but also support health and wellness as part of your business strategy. Including health and wellness as part of your economic objectives creates an environment that supports a positive impact on overall well-being which can increase your businesses profitability.

The EEOC’s final rulings will go into effect January 1, 2017. Please review EEOC's site for additional rules and regulations.

_{Citations: "EEOC's Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act." U.S. Equal Employment Opportunity Commission, 17 May 2016. Web.}

_{Wieczner, Jen. "Your Company Wants to Make You Healthy." Wall Street Journal. Web.}