So let’s say that, as an employer, you legitimately care about the health and wellbeing of your employees. And let’s further say that you want to educate employees about the state of their own health, while giving them incentives and a pathway to help them become healthier.
Sounds good so far, right? But let’s now say that one of the components of your wellness program involves biometric screening that uses discounts on insurance premiums as an incentive to get people to go through the screening. How terrible! How dare you! What kind of monster are you?!?
Well, you’re the kind of monster that looks a lot like many of our clients, and the government has seen fit to issue all sorts of regulations that control the way that many common wellness program practices can be performed.
Most recently, the Equal Employment Opportunity Commission issued final regulations that provided guidance to help wellness programs comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). However, as a result of a court challenge, those regulations are set to become invalid on January 1, 2019.
So what are you supposed to do now?
The ADA and the GINA prohibit employers from using wellness incentive programs that would be considered to be “involuntary.” For instance, telling employees they will be fired if they don’t submit to a Health Risk Assessment (HRA) would be considered an involuntary program, since employees have no choice in the matter.
Historically, there hasn’t been any clear guidance as to what makes a wellness incentive program voluntary or involuntary. For instance, would a program that offers reduced health insurance premiums to employees who undergo an HRA be considered voluntary because employees could choose not to take the HRA but still get health insurance, or would it be considered involuntary because employees choosing not to take the HRA are forced to pay more for insurance?
In 2016, the Equal Employment Opportunity Commission (EEOC) issued regulations under the ADA and GINA confirming that wellness programs offering incentives or penalties could be considered voluntary, but only if the incentives fell within the parameters established by the regulations.
The problem for employers is that the incentive parameters set forth in the ADA/GINA regulations were significantly narrower (i.e., lower) than the ones established by the Health Insurance Portability and Accountability Act (HIPAA), which employers had been operating under for years. As a result, many employer incentive programs suddenly became “involuntary” under the new regulations.
In 2017, a federal court declared the incentive limits in the ADA and GINA regulations invalid starting January 1, 2019, and in doing so, even hinted that the incentive thresholds established by the regulations might have been too high. Unfortunately, this creates more problems than it solves, since incentive programs still have to be voluntary to pass muster under the ADA and GINA, but now there isn’t any guidance as to what amount of incentive might be permissible, and it doesn’t seem likely new regulations will be issued anytime soon (if ever).
As a result, if you are offering a wellness incentive program, you need to determine what you will do to try to comply with the ADA/GINA voluntariness requirements in the absence of any guidance.
In the absence of any regulatory guidance, what should you do to make sure your wellness incentive programs will be considered voluntary under the ADA and GINA?
The only approach guaranteed to be legally safe is to not offer incentives at all in connection with HRAs. However that’s directly contrary to what you probably want to do, and undercuts the effectiveness of using HRAs in the first place, since many of the people who would most benefit from undergoing an HRA are the ones who are the least likely to do so without some sort of incentive.
Unfortunately, once you decide to use some sort of incentive, it becomes impossible to say with certainty what level of incentive would be acceptable to both the courts and the EEOC, although it is safe to say that the higher the incentive amounts are set, the more likely it is that they would be considered involuntary if challenged.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuin
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuing Ed program. He previously was a plaintiff’s attorney and brings that perspective into his advice to employers. James received his law degree from the University of Minnesota and his BA from Washington University in St. Louis.
Risk management and human resources are traditionally two different job functions, and the people in these areas have rarely crossed paths — but that is changing.
Why are these people starting to work together more frequently?
Foth Companies, headquartered in Green Bay, Wis., understands the link between the company’s success and the well-being of its employees. Implementing a wellness program called “Workin’ Well” featuring health risk assessments (HRAs) is one way the company is demonstrating its commitment to employees.
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