Work­place well­ness pro­grams have increased pop­u­lar­i­ty through the years. Accord­ing to the most recent UBA Health Plan Sur­vey, 49 per­cent of firms with 200+ employ­ees offer­ing health ben­e­fits in 2016 offered well­ness pro­grams. Work­place well­ness pro­grams’ pop­u­lar­i­ty also brought con­tro­ver­sy and hefty dis­cus­sions about what works to improve pop­u­la­tion health and which pro­grams com­ply with the com­plex legal stan­dards of mul­ti­ple insti­tu­tions that have not real­ly “talked” to each oth­er in the past. To “add wood to the fire,” the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) made pub­lic some legal actions that shook the core of the well­ness indus­try, such as EEOC vs. Hon­ey­well Inter­na­tion­al, and EEOC vs. Ori­on Ener­gy Systems. 

To ensure a well­ness pro­gram is com­pli­ant with the ACA, GINA and the EEOC, let’s first under­stand what each one of these insti­tu­tions are.

The Afford­able Care Act (ACA) is a com­pre­hen­sive health­care reform law enact­ed in March 2010 dur­ing the Oba­ma pres­i­den­cy. It has three pri­ma­ry goals: to make health insur­ance avail­able to more peo­ple, to expand the Med­ic­aid pro­gram, and to sup­port inno­v­a­tive med­ical care deliv­ery meth­ods to low­er the cost of health­care over­all.1 The ACA car­ries pro­vi­sions that sup­port the devel­op­ment of well­ness pro­grams and deter­mines all rules around them.

The Genet­ic Infor­ma­tion Nondis­crim­i­na­tion Act of 2008 (GINA) is a fed­er­al law that pro­tects indi­vid­u­als from genet­ic dis­crim­i­na­tion in health insur­ance and employ­ment. GINA relates to well­ness pro­grams in dif­fer­ent ways, but it par­tic­u­lar­ly relates to the gath­er­ing of genet­ic infor­ma­tion via a health risk assessment.

The U.S. Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) is a fed­er­al agency that admin­is­ters and enforces civ­il rights laws against work­place dis­crim­i­na­tion. In 2017, the EEOC issued a final rule to amend the reg­u­la­tions imple­ment­ing Title II of GINA as they relate to employ­er-spon­sored well­ness pro­gram. This rule address­es the extent to which an employ­er may offer incen­tives to employ­ees and spouses.

Here is some advice to ensure your well­ness pro­gram is com­pli­ant with mul­ti­ple guidelines.

  1. Make sure your well­ness pro­gram is “rea­son­ably designed” and vol­un­tary – This means that your program’s main goal should be to pro­mote health and pre­vent dis­ease for all equal­ly. Addi­tion­al­ly, it should not be bur­den­some for indi­vid­u­als to par­tic­i­pate or receive the incen­tive. This means you must offer rea­son­able alter­na­tives for qual­i­fy­ing for the incen­tive, espe­cial­ly for indi­vid­u­als whose med­ical con­di­tions make it unrea­son­ably dif­fi­cult to meet spe­cif­ic health-relat­ed stan­dards. I always rec­om­mend well­ness pro­grams be as sim­ple as pos­si­ble, and before mak­ing a change or deci­sion in the well­ness pro­gram, iden­ti­fy all dif­fi­cult or unfair sit­u­a­tions that might arise from this change, and then run them by your company’s legal coun­sel and mod­i­fy the pro­gram accord­ing­ly before imple­ment­ing it. An exam­ple of a well­ness pro­gram that is NOT rea­son­ably designed is a pro­gram offer­ing a health risk assess­ment and bio­met­ric screen­ing with­out pro­vid­ing results or fol­low-up infor­ma­tion and advice. A well­ness pro­gram is also NOT rea­son­ably designed if exists mere­ly to shift costs from an employ­er to employ­ees based on their health.
  2. Do the math! – Recent rules imple­ment­ed changes in the ACA that increased the max­i­mum per­mis­si­ble well­ness pro­gram reward from 20 per­cent to 30 per­cent of the cost of self-only health cov­er­age (50 per­cent if the pro­gram includes tobac­co ces­sa­tion). Although the final rules are not clear on incen­tives for spous­es, it is expect­ed that, for well­ness pro­grams that apply to employ­ees and their spous­es, the max­i­mum incen­tive for either the employ­ee or spouse will be 30 per­cent of the total cost of self-only cov­er­age. In case 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 plan, the employ­er may offer a max­i­mum incen­tive of 30 per­cent of the low­est cost major med­ical self-only plan it offers. As an exam­ple, if a sin­gle plan costs $4,000, the max­i­mum incen­tive would be $1,200.
  3. Pro­vide a notice to all eli­gi­ble to par­tic­i­pate in your well­ness pro­gram – The EEOC made it easy for every­one and post­ed a sam­ple notice online at https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm. Your notice should include infor­ma­tion on the incen­tive amount you are offer­ing for dif­fer­ent pro­grams, how you main­tain pri­va­cy and secu­ri­ty of all pro­tect­ed health infor­ma­tion (PHI) as well as who to con­tact if par­tic­i­pants have ques­tion or concerns.
  4. If using a HRA (health risk assess­ment), do not include fam­i­ly med­ical his­to­ry ques­tions – The EEOC final rule, which expands on GINA’s rules, makes it clear that “an employ­er is per­mit­ted to request infor­ma­tion about the cur­rent or past health sta­tus of an employ­ee’s spouse who is com­plet­ing a HRA on a vol­un­tary basis, as long as the employ­er fol­lows GINA rules about request­ing genet­ic infor­ma­tion when offer­ing health or genet­ic ser­vices. These rules include require­ments that the spouse pro­vide pri­or, know­ing, writ­ten, and vol­un­tary autho­riza­tion for the employ­er to col­lect genet­ic infor­ma­tion, just as the employ­ee must do, and that induce­ments in exchange for this infor­ma­tion are lim­it­ed.”2 Due to the com­plex­i­ty and “gray areas” this item can reach, my rec­om­men­da­tion is to keep it sim­ple and to leave genet­ic ser­vices and genet­ic coun­sel­ing out of a com­pre­hen­sive well­ness program.

Well­Steps, a nation­wide well­ness provider, has a use­ful tool that every­one can use. Their “well­ness com­pli­ance check­er” should not sub­sti­tut­ed for qual­i­fied legal advice, but can be use­ful for a high lev­el check on how com­pli­ant your well­ness pro­gram is. You can access it at https://www.wellsteps.com/resources/tools.

I often stress the need for all well­ness pro­grams to build a strong foun­da­tion, which starts with the company’s and lead­ers’ mes­sages. Your com­pa­ny should launch a well­ness pro­gram because you val­ue and care about your employ­ees’ (and their fam­i­lies’) health and well-being. Every­thing you do and say should reflect this phi­los­o­phy. While I always rec­om­mend com­pa­nies to care­ful­ly review all reg­u­la­tions around well­ness, I do believe that if your well­ness pro­gram has a strong foun­da­tion based on your cor­po­rate social respon­si­bil­i­ty and your pas­sion for build­ing a healthy work­place, you most like­ly will be with­in the walls of all these rules. At the end, a work­place that does well­ness the right way has employ­ees who are not moti­vat­ed by finan­cial incen­tives, but by their intrin­sic moti­va­tion to be the best they can be as well as their accep­tance that we all must be respon­si­ble for our own health, and that all cor­po­ra­tions should be respon­si­ble for pro­vid­ing the best envi­ron­ment and oppor­tu­ni­ties for employ­ees to do so.

Orig­i­nal­ly pub­lished by www.ubabenefits.com