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Wellness programs are an increasingly common employee benefit, especially among large employers. Although these programs take a variety of forms, they are all in some way intended to promote the health and well-being of participants. Ideally, the result is a healthier workforce and lower health-care costs, benefitting both employers and employees. However, wellness program sponsors need to be familiar with the multiple regulatory regimes that govern these programs.
Implicating employment, health care, and privacy laws, workplace wellness programs are the focus of various provisions under the Health Insurance Portability and Accountability Act (HIPAA), the Patient Protection and Affordable Care Act (ACA), the Genetic Information Nondiscrimination Act (GINA), and the Americans with Disabilities Act (ADA), among other statutes. In May of this year the Equal Employment Opportunity Commission issued the latest wellness program rulemaking, updating final rules under Title II of GINA and Title I of the ADA.
Among the many laws that govern wellness programs, the following federal statutes may be the most important:
HIPAA non-discrimination rules. Wellness programs that are group health plans (because they provide, insure, or subsidize medical care) or are part of a group health plan are subject to HIPAA. HIPAA’s non-discrimination rules, which have been harmonized with the ACA’s non-discrimination provisions, generally prohibit treating individuals differently based on a health factor. The existence of, or predisposition for, a medical condition is one kind of protected health factor. However, a specific exception applies to certain wellness programs that otherwise may run afoul of the general rule.
The exception applies differently to health-contingent programs, which reward participants for either completing a particular activity (e.g., an exercise or diet regimen) or achieving a particular outcome (e.g., attaining a specified body mass index), versus participatory programs, which are open to any eligible individual who wants to participate.
Health-contingent programs are more restrictive. They must be reasonably designed to promote health or prevent disease, meet an availability standard (which may mean offering an alternative means to obtain a program reward if the primary means would be unreasonably difficult or medically inadvisable for an individual because of a protected health factor), limit the value of any incentive offered to no more than the regulatory cap, and in some cases satisfy notice requirements.
Participatory programs, in contrast, merely need to be available to all similarly situated individuals, without excluding anyone based on health status (e.g., eligibility can be limited to full-time employees or persons enrolled in a particular health plan, but not to individuals who have no history of heart disease). HIPAA does not limit the incentives that can be offered for participatory programs. Examples include health education, gym membership reimbursement, and diagnostic screening or health risk assessment (HRA) programs.
Separately, wellness programs subject to HIPAA must comply with HIPAA’s privacy and security rules to the extent that certain individually identifiable health information is involved in administering the program (e.g., if participants complete an HRA or undergo biometric screening).
GINA Title I. Title I of GINA prohibits group health plans from cost discrimination on the basis of genetic information. “Genetic information” includes requesting or requiring genetic tests, or requesting or acquiring any genetic information for underwriting purposes or prior to or in connection with enrollment. Due to the broad interpretation of “genetic information” and “underwriting purposes,” any wellness program that qualifies as a group health plan risks violating GINA if it offers a cash or cash-like reward (including premium or deductible discounts or cash rebates) in return for activities such as completing an HRA that includes family medical history questions or obtaining information about the manifestation of a disease or disorder in a participating spouse of an employee.
GINA Title II. Title II of GINA prohibits employers from discriminating against employees on the basis of genetic information and, subject to limited exceptions, prohibits employers from requesting or acquiring the genetic information of employees or their family members. These rules apply to all wellness programs, whether or not they are themselves group health plans or are associated with group health plans. Like HIPAA, however, GINA’s Title II provides an exception that allows certain wellness programs to request genetic information.
To qualify for the exception, the program must be reasonably designed to promote health or prevent disease; make the furnishing of genetic information to the program strictly voluntary; obtain knowing, voluntary, and written authorization from an individual prior to obtaining any genetic information; and adhere to disclosure and use limitations. In addition, no inducement may be offered that is conditioned on the provision of genetic information, with one exception: an employee’s spouse may be required to provide information about the spouse’s manifestation of a disease or disorder (but no other genetic information) in order to receive a reward of a value up to the regulatory maximum.
ADA. To comply with the ADA’s rules prohibiting discrimination on the basis of a disability, employers sponsoring wellness programs must ensure that their program is available to all eligible individuals without regard to disability. For example, an employer may need to provide an alternative standard, or otherwise make a reasonable accommodation, to allow individuals whose disability makes participation difficult or impossible the same opportunity as others to participate or to earn a program reward. The ADA also prohibits an employer from requiring an individual to undergo a medical examination or respond to medical inquiries on a non-voluntary basis.
Special ADA rules for wellness programs that request medical exams or make medical inquiries require a program to be reasonably designed to promote health or prevent disease; be strictly voluntary and inform individuals of the details of the program; not be overly burdensome; obtain knowing, voluntary, and written authorization from an individual prior to obtaining any genetic information; and adhere to disclosure and use limitations. Like the HIPAA non-discrimination and GINA Title II rules, certain inducements are permissible, subject to a cap on value.
Generally applicable employee benefits and labor laws. The intersection and applicability of the similar but independent wellness program regulations under HIPAA/ACA, GINA, and the ADA noted above can be confusing enough, but compliance issues don’t end there. Wellness program concerns can also arise under the Employee Retirement Income Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Internal Revenue Code, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, and the Fair Labor Standards Act, among others.
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