Last fall, we notified you that the Equal Employment Opportunity Commission (EEOC) proposed new regulations aimed at ensuring employer wellness programs comport with Title II of the Genetic Information Nondiscrimination Act (GINA). The EEOC recently issued final rules to amend the regulations.

The final rules permit employers to offer incentives to employees who choose to participate in voluntary wellness programs or who achieve certain health outcomes as long as:

• The program is “reasonably designed to promote heath or prevent disease”;
• The program may, as part of a “Health Risk Assessment,” offer inducements for an employee or participating spouse to provide information about his or her own  “manifestation of disease or disorder.” While employers may offer children the opportunity to participate in wellness programs, children must not be offered inducements in exchange for health status or genetic information;
• The program is truly voluntary, meaning employees are not required to participate and those who choose not to participate (or meet specified goals) are not denied coverage or subjected to adverse employment actions (e.g. termination, demotion);
• Any incentives offered (financial or in-kind) may not exceed 30 percent of the total cost (employee plus employer contribution) of employee-only insurance coverage (or 30 percent of the cost of the second-lowest-cost “silver” plan for a 40-year-old non-smoker if the employer offering the wellness program does not offer health insurance);
• The employer only receives information collected by a wellness program in aggregate form;
• The employer provides a notice to employees that clearly explains what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure; and
• The employer provides reasonable accommodation to allow employees with disabilities equal opportunity to participate in the programs and to earn incentives.

In addition to the rules themselves, the EEOC published Q&A documents on both rules here and here.

The final EEOC rules are effective as of the first day of the first plan year beginning on or after January 1, 2017.

For more information on how this could impact your business, contact:

• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Christopher P. Maugans (716.710.5825; cmaugans@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.