More EEOC rules on employer wellness programs are coming. Will yours make the cut?

Do you follow me on Twitter? If you do, you may have watched me live-streaming some of my one-year-old, who won Halloween hands-down. Well, that and you would have gotten the early heads up that the EEOC was issuing its proposed rules on the Genetic Information Nondiscrimination Act (GINA), and its impact on your employer wellness programs.

Remember, GINA? That’s the newish federal law that generally precludes employers from obtaining genetic information about employees. But, there’s an exception to the rule; when an employee voluntarily participates in an employer wellness program.

But, there are limits to this exception. (Limits and exceptions. Sounds like some lawyers were awfully busy here). And, on Friday, the EEOC clarified those limits and exceptions with a proposed rule, a Q&A, and a small business fact sheet.

Since you folks are busy and don’t have all day to read my posts, I’ll summarize the new rules for you:

• How much of a financial incentive can your business offer? Per the Q&A, “the total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.”
• What are the restrictions on an employee’s spouse? Your business may provide some incentives to an employee whose spouse “(1) is covered under the employee’s health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status,” like a health risk assessment (e.g., a blood pressure, cholesterol, or glucose test).
• What about employee’s children? Employers cannot offer incentives for information about the current or past health status of employees’ children who participate in wellness programs that are part of a group health plan.
• Are there other limits that GINA places on the employer wellness plan? The employer wellness program (and, specifically, any health or genetic services an employer offers) must be reasonably designed to promote health or prevent disease. According to the Q&A, this means that “the service must have a reasonable chance of improving the health of, or preventing disease in, participating individuals” and “an employer-sponsored wellness program must not be overly burdensome to employees.” (What does “reasonable chance” and “overly burdensome” mean? I have no idea.)

As I told Wolters Kluwer Employment Law Daily (here), while employers had good reason for concern, the EEOC really came through by proposing pragmatic rules, which are generally consistent with both the letter and spirit of GINA, as well as its prior proposed regulations under the ADA.  Sure, there is some gray area (the squishiness I discuss in the fourth bullet above). Overall, however, companies should have enough latitude within the confines of GINA and these proposed rules to operate effective employer-sponsored wellness program, which reap universal benefits.

Anyone who wishes to comment has 60 days to do so. EEOC will accept comments through Tuesday, December 29, 2015.

Image Credit: Caroline Davis2010 on Flickr.