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EEOC Wellness Plan Rules Detailed

By Lena J. Weiner  
   May 23, 2016

Two lawyers from the Equal Opportunity Employment Commission clarify the final wellness plan rules released in May and spell out implications for employers.

The Equal Opportunity Employment Commission released in May final federal regulations around employee wellness plans. The rules go into effect January 1, 2017.

Two lawyers with the federal agency, Chris Kuczynski, acting associate legal counsel, and Peggy Mastroianni, legal counsel, discuss in detail what these new rules mean for HR executives, healthcare workers, and plan participants.

The transcript below has been lightly edited.

HealthLeaders Media: What are the highlights of the new rules around wellness plans, and what do they mean for employees and employers?

Chris Kuczynski: These are rules that apply to  wellness programs; primarily wellness programs that ask employees and their spouses for health information.

That information might be health information that is requested as part of the health risk assessment, including if people are being asked about what medical conditions they have or have had; and/or it may be in the form of a medical examination or tests for conditions like high blood pressure, glucose levels, or high cholesterol levels.

That's when these rules are going to apply—when the program includes getting information about employees' and their spouses' health information.

The bottom line is that employers who are offering wellness programs as a benefit of employment can have these programs, and can offer limited incentives in exchange for employees and their spouses to provide health information as part of wellness programs, as long as certain conditions are met.

Peggy Mastroianni: And another highlight would be confidentiality. There are very strong rules in place in addition to other, existing confidentiality rules.

HLM: Let's talk a bit more about these rules and what they mean for confidentiality.

PM: These rules are part of a larger theme of confidentiality protections for medical information.

The larger picture of this scheme includes the HIPAA rules, the rules under the Affordable Care Act (ACA), and also existing confidentiality rules under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA).

What these wellness rules do is that all the other confidentiality rules apply, but the wellness rules add some element to them.

CK: Employers can only get information back from a wellness program in aggregate terms that cannot reveal the identity of specific individuals and their medical conditions.

They can't know which of their employees have provided medical information, or what their medical conditions are.

HLM: I've heard that another key component is that these rules affirm that wellness programs will be considered voluntary, as long as an employers' incentives or discounts don't exceed 30% of the cost of an employee's individual "self-only" health coverage. Is that correct?

CK: That's right. That is the maximum incentive that can be provided to the employee, and when the spouse is also participating in the wellness program and provides his or her health information as well, the spouse's incentive is the same: 30% of the cost of the plan.

HLM: How will these rules specifically affect workers in the healthcare industry?

CK: These rules will apply to employers in the healthcare industry that have wellness programs in the same way that they apply to other employers, frankly.

In the sense of what kinds of incentives can be provided, limits on incentives, and the requirements that programs be reasonably designed to promote health and prevent disease is really the same in healthcare as in any other industry. All employers are subject to these rules, including healthcare employers.

The rules concerning notice [informing employees how their data is to be used], confidentiality, and other rules such as those prohibiting retaliation and prohibiting programs that discriminate under other EEO laws are the same.

Lena J. Weiner is an associate editor at HealthLeaders Media.

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