One of the murkier issues with wellness plans is the manner in which they intersect with the Americans with Disabilities Act (ADA). I discuss some of the background on the issue here. A recent EEOC letter (here) provides an "informal discussion" of how the ADA applies to a particular type of wellness plan.

The Plan. The wellness plan at issue waived the deductible under a health plan for participants with serious medical conditions (e.g., diabetes) who enrolled in a disease-management program. Although the wellness program did not expressly require participants to complete a health risk assessment, the EEOC assumed that participants needed to make some disclosure about their health status to their employer to become eligible for the plan, thereby implicating the ADA.

Voluntariness. The EEOC reiterated that, because a wellness plan involves an employer inquiry into an employee's medical condition, the wellness plan must be voluntary. A plan is voluntary so long as participation is not required and employees who choose not to participate are not penalized. The plan in this case did not penalize non-participants, but it did provide a reward (waiver of deductible) for participants. The EEOC would not take a position on whether the availability of a reward renders a plan involuntary. 

Reasonable Accommodation. The EEOC also noted that a wellness plan generally must provide a reasonable accommodation to individuals who are unable to meet the required outcomes or engage in required activities due to a disability. For example, if a plan requires a participant to comply with a recommended      Continue Reading...

The IRS, DOL, and HHS have issued a joint proposed regulation addressing wellness plans and the wellness exception to the HIPAA nondiscrimination rules. 

Background. Section 2705 of the Public Health Service Act, as added by the Affordable Care Act, provides statutory affirmation of the wellness-plan rules that have existed by regulation for several years as part of the HIPAA nondiscrimination rules (rules that prohibit, among other things, discrimination on the basis of health factors). It also gives the relevant governmental agencies (IRS, DOL, and HHS) express authority to issue further rules on wellness plans that increase the permissible reward or penalty to as much as 50% of the cost of associated heath-plan coverage.

Proposed Regulations. The proposed regulations largely follow the structure of the existing wellness-plan regulations, requiring, among other things, that wellness programs requiring a particular health outcome (e.g., smoking cessation, biometric screening results, minimum BMI, etc.) provide reasonable alternatives and limit the reward or penalty offered or imposed in connection with the plan. However, there are a couple of points worth highlighting:

• Participation v. Health-Contingent. The proposed regulations label wellness programs as either "participatory" or "health-contingent." It is only the health-contingent programs that are subject to more rigorous regulation under the proposed rules. Participatory programs include fitness-club memberships, general health education, and other similar programs that do not provide for a reward or include any conditions based on satisfying a standard related to a health factor.
• Size of Reward. The requirements that must be satisfied by a health-contingent program      Continue Reading...

In a closely watched case, a federal appeals court in Atlanta has rejected a challenge to a wellness plan maintained by Broward County, Florida for its employees. The case was brought by a former employee, who claimed the wellness plan violated the ADA by improperly requiring employees to submit to medical examinations.

As background, the ADA generally prohibits employers from requiring employees to undergo medical examinations or otherwise inquire of employees whether they are disabled. But purely voluntary medical examinations are permitted (as are bona fide fitness-for-duty examinations), and the ADA expressly allows employers to establish, sponsor, observe, or administer the terms of a bona fide benefit plan when those terms are based on underwriting risks, classifying risks, or administering risks. This latter rule is sometimes referred to as an underwriting "safe harbor" under the ADA.

The wellness plan in this case was fairly typical. Employees participating in the plan were subject to a health-risk assessment and a biometric screening (a finger prick for cholesterol and glucose testing). Participation was not required, but employees who did not participate were charged an extra $20 per pay period for their health-insurance coverage.

The court concluded the plan qualified for the underwriting safe harbor under the ADA and so did not violate the ADA. The wellness program was deemed to be a "term" of a bona fide benefit plan (the employer's major-medical plan), even though there was no written document for the wellness program.

There is a well-worn axiom that bad facts make bad law. This      Continue Reading...

I was interviewed for and quoted in an article (subscription required) in today's Wichita Business Journal highlighting the risk that an employer's wellness program might cross the line and result in the collection of employee genetic information in violation of the federal Genetic Information Nondiscrimination Act (GINA). The article is short and so does not get into the nuances of what is permitted and what is not, but the basic point is a good one: If you're asking employees to fill out a health risk assessment or similar questionnaire, you need to be thinking about the GINA requirements.

Here are some specific points to keep in mind:

1. If you're using a vendor to run your wellness program, they likely will understand the law, but it's still your responsibility to make sure you're in compliance. At a minimum, you'll want to review (with legal counsel) the questionnaires and other documents employees will be asked to complete to see if there are any red flags.
2. Genetic information, as defined for purposes of GINA, is broader than you might think. Family medical history, for example, is considered genetic information.
3. Although the safe bet is to simply not request that employees provide family medical history or other genetic information, there are circumstances when it can be ok. In general, disclosures in connection with a wellness plan that are entirely voluntary and not made in connection with health insurance enrollment or underwriting are permitted.