07 Feb EEOC Move Adds New Compliance Wrinkle to Wellness Programs

The idea of a wellness program seems clear-cut on the surface: Improve your employees’ health and lifestyles, and they’ll spend less on health care. That can translate into savings for employers on benefits.

Simple, right? Unfortunately for employers, setting up a wellness program is anything but a simple endeavor. A number of federal laws dictate how a program must be managed, and agencies review and revise the laws frequently.

Take the latest compliance hurdle for wellness programs: A regional office within the Equal Employment Opportunity Commission (EEOC) has ruled that incentives offered to employees’ spouses to complete a health risk assessment are a violation of the Genetic Information and Nondiscrimination Act (GINA). No one, however, seems to be able to get details about this decision, according to a report by Human Resource Executive Online.

GINA bars discrimination based on a program participant’s information — a broad definition that includes the medical history of employees and of their spouses, experts say. GINA allows incentives for wellness programs only if participants are not required to supply family medical information to get them. The EEOC decision means spouses can’t be required to supply such information when enrolling in a wellness program.

Summer Conley, an attorney with Drinker Biddle & Reath, noted in HREO that the decision “doesn’t necessarily jibe with the purpose of [the law] because there’s not really genetic information involved when you’re talking about your spouse.”

The final outcome of this decision, however, remains murky. EEOC’s national office has yet to make a formal announcement. Still, experts suggest employers play it safe and take out any incentive-based requests for family medical history information through a health risk assessment for both workers and their spouses.

GINA is just the tip of the iceberg for employers who want to sponsor a wellness program. According to Amy Gallagher, vice president of major accounts with Cornerstone Group in West Warwick, R.I., HIPAA has the greatest impact on wellness programs because it is broad and covers issues related to health, privacy and benefits. Although HIPAA prohibits employers from discriminating against workers based on their health, companies have some wiggle room, Gallagher noted in an article on GoLocal.com.

For example, while employers generally are barred from charging different rates for workers based on their health, they can award premium discounts for workers who exhibit healthy behaviors or participate in wellness programs.

Ultimately, how HIPAA impacts an employer’s wellness initiative depends on the type of plan, Gallagher wrote. Participation-based programs can reward workers for simply participating in a wellness initiative. Standards-based programs, however, grant incentives based on workers achieving a specific goal, such as weight loss or quitting smoking. The standards-based program is subject to much more regulation under HIPAA, according to Gallagher.

“Your prescription for success? Proceed with caution when developing wellness programs,” Gallagher writes. “And be sure to seek advice from benefit advisors or wellness consultants experienced in designing and executing successful — and compliant — plans.”