The employer community was sent into a frenzy with the Department of Labor’s release on May 18, 2016 of its final white-collar overtime regulations.  Just two days before however, the Equal Employment Opportunity Commission also released its own final regulations regarding employer wellness programs.

We had previously posted about the Commission’s proposed wellness program rule, and followed with a post discussing the future of wellness programs in light of two recent court decisions – EEOC v. Flambeau, Inc. and Seff v. Broward County.  In its recently issued regulations (which you can access here and here), the EEOC has set forth its final position on how the Americans with Disabilities Act (ADA) and Title II of the Genetic Information and Discrimination Act (GINA) apply to employer wellness programs that request the health information of employees and/or their spouses.  While most provisions of the final ADA rule and final GINA rule are identical to their respective proposed rules, there are some key differences, which we explain below in Q&A format below.

1. Does the ADA’s safe harbor provision apply to employer wellness programs?

No.  The ADA’s safe harbor provision states that the ADA “shall not be construed to prohibit or restrict  . . . a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.”  42 U.S.C. § 12201(c).

The Commission made no secret about its opinion that Seff and Flambeau were “wrongly decided” (including by appealing the Flambeau decision to the Seventh Circuit).  Despite case law to the contrary and pending appeals, the Commission reaffirmed its position in the final ADA rule that “the safe harbor provision does not apply to an employer’s decision to offer rewards or impose penalties in connection with wellness programs that include disability-related inquiries or medical examinations.”  Rather, the safe harbor provision only applies “to the practices of the insurance industry with respect to the use of sound actuarial data to make determinations about insurability and the establishment of rates.”  An employer’s use of wellness program to make employees healthier and reduce the costs of health care is not the type of underwriting or risk classification that is protected by the safe harbor provision. See 29 C.F.R. § 1630.14(d)(6).

2. What wellness programs are subject to these final rules?

Any wellness program that includes disability-related inquiries and/or medical exams is subject to the rule.  This includes wellness programs: (a) offered only to employees enrolled in an employer-sponsored group health plan; (b) offered to all employees regardless of enrollment in the employer-sponsored group health plan; and (c) offered as a benefit of employment by employers that do not sponsor group health plans/insurance.

3. Do the final rules provide additional clarification as to what makes a wellness program “voluntary”?

Yes.  The Commission has held steadfast in its decision to apply the “30 percent rule” for incentives set under HIPAA and the Affordable Care Act to participatory wellness programs that inquire as to employee disabilities or require employees to undergo medical examinations.  In doing so, the final rule limits the size of the incentives offered by these programs to 30% of the employee’s total cost of coverage.  Many commenters wanted the Commission to adopt an “affordability standard” to protect low-income workers from incentives that prove to be large enough to render health insurance coverage unaffordable.  The Commission declined to adopt this standard however, because in its view, “this rule promotes the ADA’s interest in ensuring that incentive limits are not so high as to make participation in a wellness program involuntary.”

Additionally, in the rule’s preamble specific to 29 C.F.R. § 1630.14(d)(2)(ii), the Commission clarifies that it is of the opinion that the ADA prohibits “the outright denial of access to a benefit available by virtue of employment”, but does not prohibit “an employer from denying an incentive that is within the [30% limit] . . . nor does it prohibit requiring an employee to pay more for insurance that is more comprehensive.”  The Commission likely included this comment to further emphasize its disagreement with the Flambeau and Seff decisions – the Commission has concluded that an employer discriminates against an employee in violation of the ADA, 42 U.S.C. § 12112(d)(4), when it “denies access to a health plan because the employee does not answer disability-related inquiries or undergo medical examinations.”

The final rule explaining the notice requirement, 29 C.F.R. § 1630.14(d)(2)(iv), also clarifies that it applies to “all wellness programs that ask employees to respond to disability-related inquiries and/o undergo medical examinations.”

4. What types of incentives may be offered to employees and how can employers calculate incentive limits?

In addition to financial incentives, employers are permitted to offer in-kind incentives (e.g., employee recognition, parking spot use, relaxed dress code) and de minimis incentives to employees, despite any difficulties in valuing these incentives.

The final ADA rule, 29 C.F.R. § 1630.14(d)(3), also explains how employers can calculate incentive limits in four situations: (a) where participation in a wellness program depends on enrollment in a particular health plan; (b) where wellness program participation does not depend on employee’s enrollment in an employer-offered single group health plan; (c) where wellness program participation does not depend on employee’s enrollment in any of employee’s group health plans; and (d) where an employer does not offer a group health plan or insurance.

5. How do these rules relate to other federal discrimination laws?

Employers should pay special attention the interpretative guidance following the final ADA rule.  In it, the Commission states:

“[E]ven though an employer’s wellness program might comply with the incentive limits set out in [29 C.F.R. § 1630.14(d)(3)], the employer would violate federal nondiscrimination statutes if that program discriminates on the basis of race, sex (including pregnancy, gender identity, transgender status, and sexual orientation), color, religion, national origin, or age.  Additionally, if a wellness program requirement (such as a particular blood pressure or glucose level or body mass index) disproportionately affects individuals on the basis of some protected characteristic, an employer may be able to avoid a disparate impact claim by offering and providing a reasonable alternative standard.”

This appears to place the additional burden on the employer to examine all wellness program incentives and requirements for potential disparate impact.  The extent to which an employer must understand specific medical characteristics of every protected class on its employee roster is unknown.

6. What changes did the Commission make in the final GINA rule?

There are four changes of note, all of which were added to the final GINA rules to clarify and/or enhance the proposed rules.

• The final GINA rule extends the prohibition on offering inducements for information from the children of employees to all children (minor children and those 18 years of age or older).

• Every provision of the final GINA rule now applies to all employer-sponsored wellness programs requesting genetic information.

• There is no longer a different inducement limit threshold for employee spouses. The final GINA rule uses the “30 percent rule” when an employee and the employee’s spouse are given the opportunity to enroll in the employer-sponsored wellness program.  The final rule provides examples of how to calculate incentive limits where this is the case.  See 29 C.F.R. 1635.8(b)(2)(iii)(A)-(D).

• Employers may not condition an employee’s or an employee’s spouse’s participation in an wellness program or their eligibility for offered incentives on the employee, the employee’s spouse, or a covered dependent agreeing to the sale, exchange, sharing, transfer, or other disclosure of genetic information or waiving GINA’s confidentiality protections.

What’s Next?

The final rules apply proactively – thus, are only applicable to wellness programs as of the first date of the plan beginning January 1, 2017 or thereafter.  In the meantime, we await the Seventh Circuit’s decision in the EEOC’s appeal of Flambeau regarding whether the ADA safe harbor provision applies to employer wellness programs.  Given the EEOC’s position that the provision does not apply and the growing number of courts that think otherwise, it is looking like the ultimate decision will be made by the U.S. Supreme Court (think: Young v. UPS – a Supreme Court decision that prompted the EEOC to revise its pregnancy discrimination guidance).