It’s 2019 – what an appropriate time to recap wellness compliance! The Equal Employment Opportunity Commission (EEOC) officially announced in December 2018 that it would get rid of the wellness incentive “voluntariness” guidance effective January 1, 2019. What this means for incentives in wellness and how they comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) is still unclear and we don’t expect an update until possibly 2020. We most recently blogged about this drawn-out topic in May 2018, in case you missed it.
The important thing to know about wellness compliance is that only the EEOC incentive guidance was nullified. The rest of wellness compliance is very much intact and needs to be followed. Here are my Top Four in Wellness Compliance:
1. HIPAA Incentive Rules Still Apply
IF your program rewards employees through the medical plan (e.g. medical premium rebate, HSA contribution) – THEN the incentive cannot exceed 30% of the employee + employer contribution. The tobacco-related incentive cannot exceed 50% of the total contribution if it does not involve medical testing.
2. EEOC Notice Still Needs to Be Sent
IF your program collects aggregate employee health data, such as that in an HRA (Health Risk Assessment) – THEN a standalone notice describing what data will be obtained and what will be done with it must be sent to all employees. The EEOC was nice enough to provide template language.
3. GINA Spouse Notice Still Needs to be Agreed-To
IF your program asks spouses about current or past “manifestations of disease and disorder” (e.g. in a health assessment, during a biometric screening) – THEN employers must obtain “prior, knowing, voluntary, written authorization” from spouses. Consider using the EEOC notice template as a guide.
4. Tobacco Differentials Still Have Rules that May Frustrate HR Professionals
IF you charge tobacco users more than non-tobacco users for their medical premiums – THEN you must keep these three things in mind:
- The surcharge cannot exceed 50% of the total contribution (30% if you use medical testing to determine their status)
- You must offer a Reasonable Alternative Standard (RAS) that does not involve requiring an employee to quit – think: having them complete a cessation program
- Once they complete the RAS, you must begin charging them the non-tobacco user rate AND refund the surcharge amount back to the beginning of the plan year
Who knew wellness compliance could be so interesting! And while we love to help keep you aware of these important compliance issues, you should always check with your legal department to make sure you’ve got things covered.