By Mary Holloway Richard, Attorney
Wellness is in the news again. Large employers have inserted wellness protocols and metrics into the workplace with great enthusiasm. Advertisements for webinars tout the importance of clinicians and counsel getting on the wellness bandwagon, and articles on the topic appear daily in local and national newspapers.
The wellness debate continues and focuses on these issues:
- Financial impact
- High risk diseases and conditions subject to detection and prevention such as diabetes, hypertension, obesity and smoking
- Impact of economic status on health and ability to access to programs supporting lifestyle change (e.g., no time to attend a course or to exercise.
The Equal Employee Opportunity Commission (“EEOC”) is the federal agency charged with oversight of employer compliance with the Americans with Disability Act (“ADA”) and specifically with guiding employers in properly complying with the ADA in the context of popular wellness programs. The ADA is, of course, statutory; supporting regulations and interpretive guidelines are issued by the agency. While the interpretive guidelines do not have the force of law, they are regularly instructive as a window into the agency’s perspective and intent in terms of review and enforcement
Recently, the EEOC proposed a rule change in which it will reverse its own policy on whether or not employer-sponsored wellness programs discriminate against employees. The EEOC is now saying that such programs do not necessarily discriminate against workers. The agency also indicates that such employers have yet to show the financial benefits of such programs. The EEOC’s proposed rule change would allow for employers to decrease premiums as an incentive for employees to comply with recommended health screenings and to improve their health metrics without violating federal disabilities laws.
Presented in late April, 2015, the EEOC’s proposed wellness regulations seek to establish how such a program must be structured in order to comply with the ADA’s rule permitting disability-related inquiries and medical exams by a “voluntary health program.”[i] The proposed regulations require:
- A cap on an employer-incentive or penalty at 30% of the total cost of employee-only coverage under the plan. [ii] Total cost refers to employer plus employee contributions.
- Additional requirements for employers offering a wellness program in conjunction with a group health plan, including notice to employees of the medical information to be obtained and by whom and how the information will be used and how safeguards against improper disclosure.
- New confidentiality provisions to be applied to information obtained in wellness programs by sponsors or wellness vendor.
- The program itself must be created in such a way as to promote health status, prevent disease and not be overly burdensome on plan participants.
This does not relieve the employers from compliance with HITECH and HIPAA and the Affordable Care Act. In addition and importantly, employers will be faced with differing requirements by the Internal Revenue Service, the Department of Labor and the Department of Health and Human Service — the agencies responsible for implementing the Affordable Care Act. These inconsistencies may be resolved at the close of the public comment period for these new EEOC proposed regulations. The period for public comment closes on June 19, 2015.
[i] It is likely that most wellness programs will fit into this category.
[ii] The Affordable Care Act’s non-tobacco incentive is held to the same limit for wellness programs including collection of health data. The additional cap in the proposed regulations is for the same amount for the tobacco incentive for participation-only wellness programs unless the employer does not fall within the purview of the ADA (less than 50 employees.) The policy ramification is that the EEOC does not distinguish between a tobacco-cessation wellness program where the participants are questioned about their tobacco use from one where a nicotine test is required of them to verify tobacco use or non-use.
Author: Mary Holloway Richard is recognized as one of pioneers in healthcare law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.