The Wagner Law Group
Wagner Law Group, A Professional Corporation, is a nationally
recognized ERISA & employee benefits, estate planning,
employment, labor & human resources practice.
in 1996, The Wagner Law Group has 22 attorneys engaged
exclusively in employee benefits, estate planning and
employment law. Six of our attorneys are AV rated by
Martindale-Hubbell as having very high to preeminent legal abilities
and ethical standards. The firm is among the largest ERISA boutiques
in the country. Our practice is national in scope, with clients in
more than 40 states and several foreign countries.
Wagner Law Group
Fax: (561) 293-3591
7108 Fairway Drive
Palm Beach Gardens, FL 33418
East Kennedy Boulevard
Tampa, FL 33602
Francisco, CA 94104
100 South 4th Street, Suite 550
St. Louis, MO 63102
May 19, 2016
Health and Welfare Law
EEOC Issues Final
Regulations on Employer Wellness Programs
Equal Employment Opportunity Commission ("EEOC") has issued
two sets of final regulations that provide guidance on how
employer-sponsored wellness programs that require employees to answer
disability-related questions or undergo medical examinations can
comply with the Americans with Disabilities Act ("ADA") and
the Genetic Information Nondiscrimination Act of 2008
Background. "Wellness program" generally
refers to health promotion and disease prevention programs and
activities offered to employees as part of an employer-sponsored
group health plan or separately as a benefit of employment.
of the ADA prohibits employers from discriminating against
individuals on the basis of disability. While Title I generally
restricts employers from obtaining medical information from job
applicants and employees, it allows for inquiries about employees'
health and authorizes medical examinations that are part of a
voluntary employee health program, including workplace wellness programs.
Title I also requires employers to make all wellness programs
available to all employees, to provide reasonable accommodations for
employees with disabilities, and to keep confidential all medical
information obtained in connection with its wellness programs.
general, GINA protects job applicants, and current and former
employees from discrimination in employment matters on the basis of
genetic information. Specifically, GINA restricts employers
from requesting, requiring, or purchasing genetic information to use
in making decisions on employment matters unless one or more of the
six narrow exceptions exists. Moreover, GINA strictly limits
when covered employers may disclose genetic information.
ADA and GINA contain exceptions that allow employers to ask
health-related questions and conduct certain medical examinations (e.g.,
biometric screenings) to determine risk factors as part of a
voluntary wellness program that is reasonably designed to promote
health or prevent disease. To meet this standard, a wellness
program cannot require an overly-burdensome amount of time for
participation, involve unreasonably intrusive procedures, be a
subterfuge for violating laws prohibiting employment discrimination
or require employees to incur significant costs for medical
Highlights from the ADA and GINA final regulations are as follows:
on financial incentives.
If a wellness program is open only to employees enrolled in a
particular health plan, the maximum allowable incentive that an
employer can offer is 30% of the total cost of the plan's self-only
coverage. When an employer offers more than one group health
plan but participation in a wellness program is open to all employees
regardless of whether they are enrolled in a particular plan, the
employer may offer a maximum incentive of 30% of the lowest-cost
self-only coverage option it offers.
tobacco-cessation programs, the final regulations clarify that merely
asking employees whether or not they use tobacco is not a wellness
program that asks disability-related questions. Therefore, in
these situations an employer can offer an incentive equal to 50% of
the cost for self-only coverage. However, where a
tobacco-cessation program requires employees to undergo a biometric
screening or other medical procedure to test for nicotine use, the
30% incentive limit described above applies.
speaking, all wellness programs, including those that do not obtain
medical information, must be made available to all employees.
Accordingly, employers must provide reasonable accommodations to
disabled employees to enable them to earn whatever financial
incentive is offered through the wellness program.
Requirements. An employer
may only receive information gleaned from a wellness program in
aggregate form that does not disclose, and is not reasonably likely
to disclose, the identity of specific individuals, except as
necessary to administer the plan. Moreover, an employer may not
require an employee to agree to the sale, transfer, exchange or other
disclosure of medical information in exchange for an incentive or as
a condition for participating in a wellness program, except to the
extent authorized under the ADA to carry out the purpose of the
must provide a notice to participating employees that describes the
details of the wellness program, including: what information will be
collected; how it will be used; who will receive it; restrictions on
the disclosure of such information; and how the information will be
on Retaliation. Employers are
prohibited from denying access to health insurance or any package of
benefits to, or retaliating against, any employee whose spouse
refuses to provide information about his or her current or past
health status to an employer wellness program.
for Employers. The
provisions of the final regulations related to the wellness program
inducements limits and notice requirements will apply only
prospectively to employer-sponsored wellness programs as of the first
day of the first plan year that begins on or after January 1,
2017. With respect to meeting the final regulations'
confidentiality requirements, employers are advised to take the
following action steps:
- Adopt and
communicate clear confidentiality policies.
- Train employees
who handle confidential information.
prompt notification to employees (and family members) if a
The ADA final regulations are available at: https://www.gpo.gov/fdsys/pkg/FR-2016-05-17/pdf/2016-11558.pdf
The GINA final regulations are available at: https://www.gpo.gov/fdsys/pkg/FR-2016-05-17/pdf/2016-11557.pdf