EEOC Publishes Wellness Rules

U.S. Sen. Lamar Alexander, R-Tenn., who chairs the U.S. Senate Health, Education, Labor and Pensions Committee, said he will try to block the new rules and predicted they "will make it harder for employees to choose healthy lifestyles and to save money."

The U.S. Equal Employment Opportunity Commission on May 16 issued final rules describing how Title I of the Americans with Disabilities Act and Title II of the Genetic Information Nondiscrimination Act apply to corporate wellness programs that request health information from employees and their spouses. The two rules provide guidance to employers and employees about how workplace wellness programs can comply with those laws, consistent with provisions governing wellness programs in HIPAA (the Health Insurance Portability and Accountability Act) as amended by the Affordable Care Act.

EEOC explained that "that the final ADA rule provides that wellness programs that are part of a group health plan and that ask questions about employees' health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule provides that the value of the maximum incentive attributable to a spouse's participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee. No incentives are allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee's spouse, and an employee's children."

The two rules allow wellness programs to operate consistent with their stated purpose of improving employee health, while including protections for employees against discrimination, according to the agency; the rules are available at https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act and https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act. EEOC also published Q&A documents at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm and https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm and two documents for small businesses at https://www.eeoc.gov/laws/regulations/facts-ada-wellness-final-rule.cfm and https://www.eeoc.gov/laws/regulations/facts-gina-wellness-final-rule.cfm.

ADA and GINA generally prohibit employers from obtaining and using information about employees' own health conditions or about the health conditions of their family members, including spouses, but they allow employers to ask health-related questions and conduct medical examinations, such as biometric screenings to determine risk factors, if the employer is providing health or genetic services as part of a voluntary wellness program. EEOC said the final rules will go into effect in 2017 and apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan. "The EEOC received comments on both rules from a broad array of stakeholders and considered them carefully in developing this final rule," said EEOC Chair Jenny R. Yang. "The commission worked to harmonize HIPAA's goal of allowing incentives to encourage participation in wellness programs with ADA and GINA provisions that require that participation in certain types of wellness programs is voluntary. These rules make clear that the ADA and GINA provide important safeguards to employees to protect against discrimination."

Republican leaders of the U.S. House Education and the Workforce Committee disagreed that the rules support employers' wellness programs, however. Chairman John Kline, R-Minn., and Workforce Protections Subcommittee Chairman Tim Walberg, R-Mich., issued a joint statement after the EEOC issued the new rules, saying in their statement that the rules undermine employee wellness programs: "Rising health care costs are a top concern for Americans across the country. More employers are offering wellness programs to help alleviate that concern and improve the well-being of their employees. The fact the commission is undermining those important efforts is simply baffling. We should be exploring new ways to support innovative programs like these that help control costs and promote a healthier, more productive workforce. Instead, the agency is creating new bureaucratic hurdles and sending a confusing message to employers who want to reward their employees for making healthy lifestyle decisions. These new rules are at odds with the law and the strong bipartisan support for employee wellness programs—including support from the president himself. We intend to do everything we can to protect America’s workers and their families from these misguided rules, and we'll continue our efforts to encourage free-market solutions that empower individuals with more control over their personal health care decisions."

Two of their Democratic counterparts, Education and the Workforce Committee Ranking Member Robert C. Scott (D-Va.) and Workforce Protections Subcommittee Ranking Member Frederica S. Wilson (D-Fla.), issued a statement saying the rules need work. "We commend the EEOC's deliberative process in developing the final workplace wellness rule. When executed correctly, wellness programs have the potential to benefit employees and employers by improving health management and lowering health costs," they said. "Effective employer-based wellness programs and robust civil rights protections can coexist. In two letters that we sent to the EEOC on their proposed rules, we emphasized that without robust protections for employees and their families, employer-based wellness programs can place private health information needlessly at risk and expose employees to unlawful discrimination. We also stressed that these programs work best when they are truly voluntary and workers and their families do not feel coerced into participation or face undue financial burden if they decline to participate. We remain steadfast in our belief that the EEOC must ensure employees provide their private health information to these programs voluntarily, and employers must put adequate safeguards in place to protect the private health information of workers who participate. While today's final rule contains small improvements from the proposed rules, we believe that these changes fall short of achieving these goals. We look forward to continuing our work with the EEOC, the employer community, and workers to ensure that strong civil rights protections are maintained in wellness programs."

U.S. Sen. Lamar Alexander, R-Tenn., who chairs the U.S. Senate Health, Education, Labor and Pensions Committee, said the new rules "will make it harder for employees to choose healthy lifestyles and to save money.

"Wellness programs are the only part of Obamacare that everyone agreed on—everyone except the EEOC," Alexander said. "Congress was clear in its support of workplace wellness programs in the health care law—just about the only provision in the law with bipartisan support—and the Departments of Health and Human Services, Labor, and Treasury were clear in their regulations implementing the law. It seems the EEOC is the only one missing the mark."

He said the Affordable Care Act allowed employers to offer discounts on health insurance premiums by up to 50 percent if approved by the three federal agencies, which have used that authority to approve a 50 percent discount for smoking cessation. But the EEOC rules say that any discount above 30 percent may be discriminatory. "The EEOC is taking away authority that Congress gave the administration and overruling the actions of the Departments of Health and Human Services, Labor, and Treasury," he said. "Today's rules contradict the law and continue the confusion the agency has caused, so Congress will need to act to help employees seeking to improve their health while bringing down their insurance costs."

Alexander said he will push his legislation, The Preserving Employee Wellness Programs Act, to reaffirm existing law and is considering introducing resolutions of disapproval under the Congressional Review Act to overturn the rules by a majority vote in the Senate and the House of Representatives.

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