The Affordable Care Act permits employers to increase financial incentives to encourage workers to be healthier, but there are limitations under the Americans with Disabilities Act (ADA). The U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule to provide guidance on how wellness-incentive programs can comply with the ADA, but questions remain.
“There are many open questions that need to be addressed,” says Molly Jones, senior associate in Alston & Bird’s Labor and Employment Group.
For example, it’s unknown at this point whether certain aspects of the EEOC’s inventive limitations will be brought in line with similar HIPAA provisions and whether additional limitations will be imposed for incentives offered to low-income employees, says Jones.
A new wellness-incentives rule could mean changes in the way HR and benefits professionals approach wellness plans.
For example, the terms of programs that ask disability-related inquiries (such as a health-risk assessment) or require a medical exam (such as a screening) may have to be revised, says Ashley Gillihan, counsel in the firm’s Employee Benefits & Executive Compensation Group.
“Until now,” says Gillihan, “most employers with wellness programs have focused their compliance solely on the HIPAA/ACA wellness rule, and while they may be similar, the EEOC’s rules will be different in some areas.”
Indeed, employers may have to provide additional notice requirements to employees regarding wellness programs, “and the medical information employers can receive from the wellness programs may be limited,” says Jones.
Gillihan noted that HR leaders should review their wellness programs in conjunction with their legal counsel, noting that wellness program compliance going forward will require knowledge of not only the EEOC’s regulations, but also HIPAA/ACA, as well as the Genetic Information Nondiscrimination Act, a law for which he expects the EEOC will issue a separate set of regulations.