The EEOC announces new regulations for employer wellness programs

Human resources professionals should take note of the U.S. Equal Employment Opportunity Commission's recent announcement published earlier this week. On April 20, 2015, the EEOC posted a Notice of Proposed Rulemaking intended to further define the ways in which employer health and wellness programs are affected by Title I of the Americans with Disabilities Act. Wellness programs offered as part of group health plans may be subject to new regulations later this year.

What do the new rules entail?
According to a press release on the EEOC website, the American public has 60 days to send in comments, opinions or requests with regard to the NPRM. Friday, June 19 is the final day for anyone to submit comments, after which the EEOC will review the suggestions and draft final rules. 

Among the new stipulations outlined by the EEOC are:

  • Voluntary enrollment: Employers cannot mandate enrollment in a wellness program that requires employees to provide information about disabilities or undergo medical exams. In addition, Cigna noted employees choosing not to participate in this type of program cannot be disciplined, fired, offered limited health benefits or treated differently because of their decision. Should any employee with a disability choose to enroll, the program must be modified to allow participation as necessary.
  • Incentives guidelines: The most an employer can offer a wellness program participant in terms of a financial incentive is 30 percent of the cost of benefit premiums for employee-only coverage.
  • Notifying employees: Before administering a medical exam or collecting employee disability information, the employer must provide a detailed account of what intelligence will be collected, who will be able to see it, confidentiality practices in place to protect data and how it will be used. This routine must comply with the Health Insurance Portability and Accountability Act Privacy Rule, which generally stipulates medical information be displayed to businesses cumulatively, rather than on an individual level.
  • Reasonable and healthy: Programs requiring the accumulation or storage of employee data must be reasonably designed to improve the health and well-being of participants. Programs must provide relevant and informative feedback to everyone enrolled. The EEOC FAQ page for the new rules stated that if a program is found incomplete or cannot reasonably help employees prevent disease or improve health, it isn't compliant. 

The EEOC is attempting to smooth out any discrepancies between the current Patient Protection and Affordable Care Act and the ADA. The proposed changes would help both employers and employees better understand the way wellness programs work with the new health care law and the ADA. It would also prevent opportunities for discrimination against employees based on disabilities or physical well-being when it comes to administering benefits, incentives and rewards. 

What does this mean for HR?
HR professionals will need to monitor the developments of these new rules closely. As the guidelines currently stand, they would not alter the new health care law rules in place today, but any existing wellness program would have to comply with additional ADA rules later this year. It would behoove HR professionals to participate in the discussion over these EEOC regulations, offering insight into what their companies need and already offer workers. 

In addition, HR specialists may want to revisit current practices applied to wellness programs. Is the business ADA compliant? Is it covered by HIPAA? If the company is not covered by HIPAA, it's likely they'll have to sign a certificate to ensure they at least comply with the ADA and adequately keep employee confidential health information secure and private. Between now and June, HR departments should take inventory of their compliance rates and determine where they fall when it comes to ADA, HIPAA and the new health care law regulations.