Wellness Rules Under ADA and GINA

November 21, 2019

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Workplace Wellness Plan Design – Legal Issues
Employers that offer health benefits to their employees may decide to implement wellness plans as a way to help control health plan costs and encourage healthy lifestyles. However, there are a number of legal compliance issues that are involved with designing workplace wellness plans. Wellness plans must be carefully structured to comply with both state and federal laws. The three main federal laws that impact the design of wellness plans are:

• The Health Insurance Portability and Accountability Act (HIPAA);
• The Americans with Disabilities Act (ADA); and
• The Genetic Information Nondiscrimination Act (GINA).

These laws each have their own set of legal rules for acceptable wellness program design, which are not always consistent with one another. This Compliance Overview provides an overview of the requirements for wellness plans under HIPAA, the ADA and GINA. See Page 9 for a chart that compares key wellness plan requirements under these three laws.

HIPAA

• HIPAA’s nondiscrimination rules apply to wellness plans that are offered in connection with group health plans.
• There are different rules for participatory and health-contingent wellness programs.

ADA:

• Wellness programs cannot discriminate against individuals with disabilities.
• If a wellness program involves medical exams or disability-related inquiries, it must satisfy certain requirements

GINA

• GINA’s restrictions apply to a wellness program when it requests genetic information—for example, family health history.

HIPAA REQUIREMENTS
A workplace wellness program that relates to a group health plan must comply with HIPAA’s nondiscrimination rules. HIPAA generally prohibits group health plans from using health factors to discriminate among similarly situated individuals with regard to eligibility, premiums or contributions. However, HIPAA includes a special rule that allows employers to provide incentives or rewards as part of a wellness program, as long as the program follows certain guidelines.

The HIPAA nondiscrimination rules were clarified by the Affordable Care Act (ACA). Under these rules, workplace wellness programs are divided into two general categories: participatory wellness plans and health-contingent wellness plans. This distinction is important because participatory wellness plans are not required to meet the same nondiscrimination standards that apply to health-contingent wellness plans.

Categories of Workplace Wellness Programs

• Participatory Wellness Plans
• Health-contingent Wellness Plans

Wellness programs that are not part of group health plans (for example, standalone programs that pay health club dues) are not subject to HIPAA’s nondiscrimination requirements.

Participatory Wellness Plans
Participatory wellness plans either do not require individuals to meet health-related standards in order to obtain rewards or do not offer rewards at all. Also, these plans generally do not require individuals to complete physical activities. For example, a program that provides a reward for attending a free health education seminar is a participatory wellness plan.

Participatory wellness plans comply with HIPAA’s nondiscrimination requirements without having to satisfy any additional standards, as long as participation is made available to all similarly situated individuals, regardless of health status. There is no limit on financial incentives or rewards for participatory wellness plans under HIPAA.

Health-contingent Wellness Plans
Health-contingent wellness plans require individuals to satisfy standards related to health factors in order to obtain rewards. There are two types of health-contingent wellness plans:

• Activity-only wellness programs require individuals to perform or complete activities related to health factors in order to obtain rewards (for example, walking, diet or exercise programs). Activity-only wellness programs do not require individuals to attain or maintain specific health outcomes.
• Outcome-based wellness programs require individuals to attain or maintain certain health outcomes in order to obtain rewards (for example, not smoking, attaining certain results on biometric screenings or meeting exercise targets).

ADA Requirements:
The ADA prohibits employers with 15 or more employees from discriminating against individuals with disabilities. As a general rule, to comply with the ADA, covered employers should structure their wellness plans to ensure that qualified individuals with disabilities:

• Have equal access to the program’s benefits; and
• Are not required to complete additional requirements in order to obtain equal benefits under the wellness program.

Reasonable Accommodations
Employers must provide reasonable accommodations that enable employees with disabilities to fully participate in employee health programs and to earn any rewards or avoid any penalties offered as part of those programs.

For example:

• An employer that offers an incentive for employees to attend a nutrition class must, absent undue hardship, provide a sign language interpreter for a deaf employee who needs one to participate in the class.
• An employer also may need to provide materials related to a wellness program in alternate format, such as large print or on a computer disk, for someone with vision impairment.
• An employer may need to provide an alternative to a blood test if an employee’s disability would make drawing blood dangerous.

According to the EEOC, complying with HIPAA’s reasonable alternative standard for a health-contingent program would generally fulfill an employer’s obligation to provide a reasonable accommodation under the ADA. However, under the ADA, an employer would have to provide a reasonable accommodation for a participatory program even though HIPAA does not require these programs to offer a reasonable alternative standard, and reasonable alternative standards are not required at all under HIPAA if the program is not part of a group health plan.

Medical Exams or Health Inquiries
Under the ADA, an employer may make disability-related inquiries and require medical examinations after employment begins only if they are job-related and consistent with business necessity. However, these inquiries and exams are permitted if they are part of a voluntary wellness program.

On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) released a final rule that describes how the ADA applies to wellness programs that include questions about employees’ health or medical examinations. The final rule is effective for plan years beginning on or after Jan. 1, 2017.

Safe Harbor for Bona Fide Benefit Plans
The ADA also has a “safe harbor” that exempts insurers and bona fide benefit plans from the ADA’s restrictions, as long as the safe harbor is not used as a way to evade the purposes of the ADA. How the safe harbor applies to employer-sponsored wellness programs has been uncertain. However, in the final rule on voluntary wellness programs, the EEOC rejects the application of the safe harbor to wellness programs. Thus, according to the EEOC, the exception for voluntary wellness programs is the only way to comply with the ADA for wellness programs that make disability-related inquiries or that require medical examinations.

GINA REQUIREMENTS
GINA prohibits discrimination based on genetic information in health plan coverage (Title I) and employment (Title II). “Genetic information” means information about:

• An individual’s genetic tests;
• The genetic tests of the individual’s family members; and
• The manifestation of a disease or disorder in the individual’s family member (that is, family medical history).

Genetic information also includes an individual’s request for, or receipt of, genetic services (including genetic research, counseling regarding the genetic condition and genetic education).

GINA’s restrictions apply to a wellness program when it requests genetic information—for example, family health history.

Wellness Programs under Group Health Plans – GINA Title I

GINA Title I applies to genetic information discrimination in health plan coverage. It prohibits a group health plan from collecting genetic information prior to or in connection with enrollment, or at any time for underwriting purposes. “Underwriting purposes” is broadly defined to include rules for eligibility for benefits and for the computation of premium or contribution amounts.

Consequently, wellness programs offered under group health plans that provide rewards for completing HRAs that request genetic information, including family medical history, violate the prohibition against collecting genetic information for underwriting purposes. This is the case even if rewards are not based on the outcome of the assessment.

Example: A group health plan provides a premium reduction to enrollees who complete an HRA. The HRA, which includes questions about an individual’s family medical history, is requested after enrollment. Even though the completion of the HRA has no effect on an individual’s enrollment status, or on the enrollment status of members of the individual’s family, this request violates GINA. This is because the assessment includes a request for genetic information (that is, the individual’s family medical history) and its completion results in a premium reduction, which means that the request for genetic information is for underwriting purposes.

Interim final regulations provide the following permissible design options for wellness programs that request genetic information (that is, family medical histories) after enrollment:

• The program does not provide a reward for the completion of an HRA that collects genetic information.
• The program provides a reward for the completion of an HRA but does not collect genetic information.
• The program offers separate HRAs—one that includes rewards but does not collect genetic information and one that does not include any rewards but collects genetic information.

Wellness Programs Offered Outside of Group Health Plans – GINA Title II
Wellness programs offered outside of a group health plan are not subject to GINA Title I, but may be subject to the employment discrimination requirements of GINA Title II. Under Title II of GINA, it is illegal for covered employers (15 or more employees) to discriminate against employees or applicants because of genetic information. GINA also restricts covered employers’ ability to request, require or purchase genetic information with respect to employees or employees’ family members.

The prohibition on requesting genetic information is subject to several exceptions, one of which applies specifically to wellness programs. An employer may request genetic information as part of a wellness program if all of the following requirements are met:

• The employee must provide the information voluntarily;
• The employee must give voluntary, knowing and written authorization before providing genetic information;
• Individually identifiable information may be provided only to the individual (or family member) receiving genetic services and the health care professionals or counselors providing the services; and
• Individually identifiable information can be available only for the purposes of the services and may not be disclosed to the employer except in aggregate terms.

Under the EEOC’s final regulations, genetic information is not provided voluntarily if the individual is required to provide the information or is penalized for not providing it. However, financial incentives can be offered for completing an HRA that includes information about family medical history or other genetic information, provided that the assessment clearly states that the incentive is available regardless of whether the individual answers the questions regarding genetic information.

Spouses’ Health Information
On May 17, 2016, the EEOC issued a final rule that allowed an employer to offer limited incentives for an employee’s spouse to provide current or past health status information as part of a wellness program. This rule was effective for plan years beginning on or after Jan. 1, 2017. Under the final rule, the maximum incentive attributable to a spouse’s participation could not exceed 30 percent of the total cost of self-only coverage, which was the same as the incentive allowed for the employee under the final ADA rule. However, the EEOC removed the provision for limited incentives for spouses from its final rule, effective Jan. 1, 2019.

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This Compliance Overview is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice.
Readers should contact legal counsel for legal advice.
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