The U.S. Equal Employment Opportunity Commission’s failure thus far to issue clear guidance on permissible wellness incentives threatens to undermine employers’ development of wellness programs at a time when their importance is growing, business groups warned the EEOC at a May 8 hearing.
“We urge you to recognize the comprehensive regulatory framework that already exists” under HIPAA’s nondiscrimination rules, as amended by the Affordable Care Act, Tami Simon of Buck Consultants told the EEOC. Otherwise, wellness programs’ uncertain status under the Americans with Disabilities Act will discourage the implementation of programs that are clearly beneficial and would meet the detailed HIPAA and ACA standards, she said.
EEOC members acknowledged the need for additional guidance on wellness incentives, but no such clarification seems imminent. “It is the commission’s duty to let the regulated community and all stakeholders know what our positions are,” said Commissioner Victoria Lipnic. “We haven’t given that kind of certainty.” This meeting was called to gather input so the EEOC can craft such guidance, she said.
The ADA generally prohibits medical inquiries, but one exception is for “voluntary wellness programs.” But the EEOC, which enforces the ADA, has declined to specify whether and how great a financial incentive would render a program involuntary. Meanwhile, the three HIPAA agencies have forged ahead with detailed numerical thresholds and procedural safeguards against health-based discrimination.
In the ACA, Congress ratified and actually loosened the HIPAA standards for wellness programs, said Amy Moore, an attorney with Covington & Burling, on behalf of the ERISA Industry Committee.
“Since Congress has determined that an incentive up to 30 percent of the annual cost of coverage does not prevent a wellness program from being voluntary for purposes of HIPAA, the commission should acknowledge that the same incentive does not prevent a wellness program from being voluntary for purposes of the ADA,” Moore argued. “The Commission should also confirm that an incentive is permissible under the ADA regardless of whether it is presented as a reward or as a penalty.”
However, representatives of consumer groups, while agreeing on the need for more clarity, argued that the ADA’s “voluntariness” standard safeguards certain rights distinct from those contemplated by HIPAA or the ACA.
Programs that “penalize people with disabilities for not being as ‘well’ as others … make it even more difficult for individuals with disabilities to obtain employment on fair and equal terms,” said Jennifer Mathis on behalf of the Consortium for Citizens with Disabilities.” And an incentive that falls within the HIPAA/ACA thresholds can still end up penalizing an employee thousands of dollars a year for refusing to disclose information that the ADA entitles him or her to keep private, she said.
HIPAA, ADA and other rules that affect employee wellness programs are detailed in the Employer’s Guide to HIPAA.