The Equal Employment Opportunity Commission (EEOC) issued a final rule to amend and interpret the regulations and guidance under the Americans with Disabilities Act (ADA) and GINA as they relate to workplace wellness programs on May 17th 2016. The EEOC final rules address wellness program incentives, data privacy and equal opportunity obligations. The EEOC's final rule require employers to start providing an annual notice to employees.What are the EEOC's New Rules?Employers must notify recipients of how the wellness program obtains their medical information, as well as how this information will be used, who will have access to it, and the restrictions that apply on disclosure of the information, including the compliance of restrictions with HIPAA (the Health Insurance Portability and Accountability Act). This notice can be included with notice materials already in use to comply with HIPAA requirements and must be provided by the first plan year on or after January 1, 2017. If an employer does not provide such a notice, they would not be considered as having a "voluntary" wellness program for purposes of ADA enforcement.There are important differences between the ACA's wellness regulations and the newly finalized EEOC regulations. The provisions for employee wellness programs under the Affordable Care Act (ACA) allow employers to reward or penalize their employees based on whether they complete health screenings and participate in fitness programs. Employees face a major issue with regards to employer wellness programs, in that to participate they are often required to provide their employers access to extensive, private health data.What's wrong with the New EEOC Rules?The Equal Employment Opportunity Commission's (EEOC) new regulations, effective from January 2017, do not add adequate privacy safeguards to the ACA's wellness programs. Employers can still ask for private health information if it is part of a loosely defined wellness program with large incentives for employees, leaving employees exposed to potential misuse of their personal health data.The new EEOC rules sets maximum allowable "incentive" an employer can offer to employees for participating in wellness programs that ask for disability-related information or ask them to undergo medical exams as 30% of the total cost of self-only coverage of the plan in which the employee is enrolled. This can add up to thousands of dollars for an employee per year.According to the new rules, information collected by the wellness program is only available to employers without disclosing the identity of specific individuals. So far so good. There is a caveat though, as more specific information can be made available to the employer when "necessary to administer the plan". The problem posed by this is that since employers are permitted to base incentives and penalties on health outcomes and not just participation, in order to measure outcomes, information can be collected on specific individuals over time. Whatever the effect of the EEOC's new rules on employee health information and privacy, those who design workplace wellness programs and employers who implement them must understand the new requirements, and be compliance ready before January 2017. You must become aware of what a "reasonably designed" employee health program is, how the new EEOC rule will affect the use of incentives in wellness programs and how the new EEOC rules affect confidentiality. To learn about the steps you can take to safeguard employee health information privacy when collecting health information and how to make sure your wellness program is compliant with the new EEOC regulations, as well as for updates on the legal cases brought by the EEOC against workplace wellness programs and how those cases are affected by the new rules, check out this webinar by industry expert Barbara J. Zabawa, JD, MPH.Blog Image: Featured Post: Speaker Image: Tag:HEALTH & SAFETY
