Most of us would say of course not. According to a recent RAND report, approximately half of U.S. employers with 50 or more employees offer wellness promotion initiatives.
The general consensus is that a healthier workforce is a more productive workforce. Wellness programs in the workplace are a hot topic right now - the ACA’s attention to workplace wellness programs and their relationship to health insurance premiums adds to the heat. Participation in a workplace wellness program can reduce an employee’s health insurance premium cost by 30% next year. That is likely to be a significant impact if all the rumors of skyrocketing insurances rates predicted for next year are true. But before an employer rushes to put a wellness program in place, careful attention should be paid to the ACA nondiscrimination wellness rules AND the existing Americans with Disabilities Act (ADA). Looking to one and not the other can trip up an employer with the best intentions.
The Department of Health & Human Services, the Department of Labor and the IRS (the Departments) just published the final rules under the ACA for workplace wellness programs. The final rules require that any health-contingent wellness program (both activity-only programs and outcome-based programs) satisfy 5 conditions. First, eligible individuals must have an opportunity to qualify for the reward at least once a year. Second, the reward must not be greater than 30% of the total cost of coverage under the plan (the reward can be as much as 50% for tobacco-related wellness programs). Third, the program must be reasonably designed to promote health or prevent disease. Fourth, a reasonable alternative standard for obtaining the reward must be available for anyone for whom it is unreasonably difficult or medically inadvisable to meet the health requirement. Fifth, full disclosure of the availability of an alternative standard must be made in plan materials describing the health-contingent wellness program. If your workplace wellness program satisfies these five conditions, you are well on your way. Next stop, the ADA.
Just in case you get so caught up in the new ACA wellness program regulations that you can’t focus on anything else, the Departments remind you — repeatedly — that ”employers subject to the [ADA] must comply with any applicable ADA requirements for disclosure and confidentiality of medical information and non-discrimination on the basis of disability.” Compliance with the ACA wellness provisions “is not determinative of compliance with any other applicable Federal or State law, which may impose additional accessibility standards for wellness programs.” What’s more, the ACA final regulations don’t make this easy. In the General Overview section, the Departments note that “the ‘reasonable alternative standard’ is separate and distinct from the standard for ’reasonable accommodations’ under the [ADA] and related laws, regulations, and guidance.”
So, just what does the ADA require of a workplace wellness program? Unfortunately, the Equal Employment Opportunity Commission (EEOC) has not yet provided definitively guidance on permissible incentives and reasonable alternatives in the workplace wellness context. What we do know is that for a wellness program to be permissible under the ADA and Title II of the Genetic Information Nondiscrimination Act of 2008 (yes, GINA touches on this too) it must be voluntary. The next question – does a financial reward or penalty tied to participation in a workplace wellness program (permissible under the ACA) render the program “involuntary” under the ADA or GINA? The EEOC ”has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary.” Access the EEOC informal discussion letter from January 18, 2013 here.
That’s not to say that the EEOC is not taking a close look at workplace wellness programs. On May 8th, the EEOC had a meeting regarding the treatment of employer-sponsored wellness programs under federal equal employment opportunity laws, including the ADA, GINA, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal Pay Act. (Access the transcript on the EEOC website.) At the meeting, the EEOC heard testimony from a panel of representatives of the business community, advocacy groups and providers seeking guidance from the EEOC on how to make wellness programs compliant with all of these laws. This SHRM article provides as summary of the concerns raised by those in attendance.
Finally, don’t forget about HIPAA. The final ACA wellness rules from the Departments state, more than once, that the final regulations implement “only the provisions regarding wellness programs in the Affordable Care Act” and that “[o]ther State and Federal laws may apply with respect to privacy, disclosures, and confidentiality of information provided to these programs.” HIPAA-covered entities, including group health plans, must comply with the HIPAA Privacy and Security Rules with respect to the confidentiality of individually identifiable health information that may be received in the administration of a wellness program.
If nothing else, remember that compliance with the ACA nondiscrimination rules for wellness programs is not determinative of compliance with any other law.
