This is a follow up to our October Update addressing changes to wellness programs effective January 1, 2019. In that update we addressed the federal Equal Employment Opportunity Commission (EEOC) regulations addressing the extent to which certain wellness programs could offer employee and spousal wellness incentives for participation and still satisfy requirements related to the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) exceptions for “voluntary” employee health programs. The regulations at issue largely focused on whether a 30% wellness incentive would render a wellness program involuntary. In general, these rules impact only those wellness plans that ask medical questions (i.e. health risk appraisals, etc.) and/or require a medical exam (i.e., biometric screenings, physical exams). The EEOC was expected to create new standards around the 30% incentive rule and the use of health-related question screenings for 2019. However, the EEOC did not timely issue any revised regulations in advance of the 2019 enrollment year. Now the EEOC earlier this week has issued final rules officially removing (vacating) the ADA and GINA incentive limits for voluntary wellness programs. All other aspects of the final rules remain in effect, including the notice and consent provisions applicable to health risk assessments.
Next Steps for Employers and Plan Sponsors for Wellness Plans in 2019
Our October Update addressed possible next steps for employers that offer wellness programs requiring participants to answer health-related questions or undergo medical testing. By this point, calendar year sponsors have considered their options and made decisions as to whether they will continue with these wellness programs or modify their plans as of January 1, 2019. While there is certainly more EEOC guidance to come on these issues, there does not appear to be a concern that a wellness program that satisfies the GINA, ADA and HIPAA rules would face greater risks in 2019 due to the removal of the EEOC regulation. Employers should certainly continue to ensure their wellness programs incentives are within ACA/HIPAA limits and that they are not conditioning eligibility for coverage on submission of a health risk assessment. The programs should also be bona fide and should not be designed to discriminate on the basis of any ADA-protected disabilities or GINA-protected genetic information. Until the EEOC issues revised rules, it’s also important to remember the DOL continues to enforce the ACA and HIPAA wellness program rules. There are clearly impermissible wellness plan designs that employers should be mindful of, such as failure to meet the requirement to offer participants who don’t meet an initial standard (such as avoiding tobacco) a reasonable alternative standard (RAS) to obtain the reward, and to disclose that RAS whenever the wellness program is communicated or described.
We will continue to monitor these issues and will issue an update as soon as new guidance is published. In the interim, please contact your Conner Strong & Buckelew account representative toll-free at 1-877-861-3220 with any questions. For a complete list of Legislative Updates issued by Conner Strong & Buckelew, visit our online Resource Center.