The second half of 2014 ended with a number complaints filed by the Equal Employment Opportunity Commission (EEOC) against wellness programs, including the EEOC’s first direct challenge under Title I of the Americans with Disabilities Act (ADA) against Orion Energy Systems and a challenge against Honeywell under both the ADA and Genetic Information Nondiscrimination Act (GINA). These lawsuits make it imperative that wellness professionals fully understand the regulatory landscapes that govern the legality of their programs. Below is a high-level overview of some of the laws. Deeper review is necessary before applying them to any wellness program.
ADA and Americans with Disabilities Act Amendments Act (ADAAA)
The ADA/ADAAA prohibits employers from requiring a medical examination and making inquiries of an employee as to whether he or she has a disability or to the nature/severity of a disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. However, there is a statutory safe harbor that exempts certain insurance plans from the ADA’s general prohibitions. The “benefit plan exception” states that the ADA shall not be construed as prohibiting an employer 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 or where the plan is not subject to state law (a self-funded benefit plan) so long as the exemption is not used as a subterfuge for discrimination. As such, voluntary medical examinations and/or histories, which are part of a group wellness program, are permissible so long as strict confidential processes are followed.
There is no short definition of “voluntary,” but the abbreviated answer is that a wellness program may be voluntary if the employer neither requires participation nor penalizes employees who do not participate. The EEOC once posited that a health reimbursement arrangement (HRA) administered as part of a wellness program that meets the incentive limitations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness regulations would be deemed voluntary and would not violate the ADA. This portion of the opinion letter was withdrawn because it was outside the scope of the request. The position currently held by the EEOC is that an incentive is a veiled penalty, which, in essence, makes the program involuntary and, thus, violates the ADA. However, this is in conflict with the “benefit plan exception,” noted above.
Under GINA, it is unlawful for an employer to request, require, or purchase genetic information with respect to an employee or an employee’s family member. There is an exception if the information is part of a wellness program, subject to strict adherence of the following three requirements:
- The employee provides prior, knowing, voluntary, and written authorization.
- Only the employee or family member and the licensed health care professional, or board certified genetic counselor involved in providing such services, receive individually identifiable information concerning the results of such services.
- Any individually identifiable genetic information provided in connection with the services is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees.
So what does it mean to be voluntary? The EEOC concluded that it would not violate Title II for an employer to offer individuals an inducement for completing an HRA that includes questions about family medical history, or other genetic information, as long as the employer specifically identifies those questions and makes clear, in language reasonably likely to be understood by those completing the HRA, that the individual need not answer the questions that request genetic information in order to receive the inducement. The EEOC added that adherence to Title II of GINA does not guarantee adherence to Title I of GINA, ADA, or HIPAA.
Check out the Wellable blog tomorrow for Part 2 of this series. It will discuss regulatory framework around HIPAA and the Patient Protection and Affordable Care Act (PPACA).