The U.S. Equal Employment Opportunity Commission (EEOC) has published a new set of rules for the  Americans with Disabilities Act (ADA) in regards to wellness programs. Because wellness programs are technically classified as Protected Health Information (PHI), these rules are affected by the Health Insurance Portability and Accountability Act (HIPAA), as well as the Affordable Care Act (ACA).

You can visit the EEOC's fact sheet at http://www.eeoc.gov/laws/regulations/facts_nprm_wellness.cfm to learn more about the newly proposed rules for wellness programs, but it essentially covers elements like incentive caps, medical information requirements, claims, and the ability for family members to receive benefits.

Under the new EEOC rules, health and wellness programs that are part of a larger group health plan have a maximum inventive cap of 30% of the cost of the employee coverage. However, ACA and HIPAA states that incentives can go as high as 50% for tobacco cessation (stop smoking) treatments and programs. This may create some confusion, as HIPAA/ACA and the newly proposed EEOC laws contradict one another. Assuming the plan allows for testing of nicotine use, the total cap on the benefit is 30%. HIPAA and ACA state that employers and employees must split this premium.

The EEOC's proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. The rule explains that under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs. These programs can include medical examinations or questions about employees' health (such as questions on a health risk assessment,” wrote the EOCC in a press release.

The 30% cap defined in the new EEOC wellness rules only focus on employee coverage. Under HIPAA and ACA rules, however, the 30% may include coverage for family members.

Here's a breakdown of key points from the EEOC's proposed rules:

  • Wellness programs must be created to “reasonably” promote good health and/or prevent illness.
  • Wellness programs are strictly voluntary, meaning employers cannot force their employees to participate.
  • Employers may only offer monetary incentives of 30% or less of the employee's health insurance premium (note: that's just the employee's premium, not the employer's).
  • All medical information associated with such wellness programs must be kept confidential, as specified in the HIPAA Privacy Rule.
  • Employers must offer accommodations to disabled employees who wish to participate in the wellness program.

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