As you may recall, the U.S. Equal Employment Opportunity Commission (EEOC) had not clarified its position on employer-sponsored wellness programs. In fact, several lawsuits were filed by the EEOC against employer-sponsored wellness programs (e.g., the Honeywell suit). The pushback was based on the Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).

On October 29, 2015 the EEOC issued proposed rules which would amend Title II of GINA as they relate to wellness programs that are part of health plans. Comments on the proposed rules were accepted through the end of 2015. In short, the proposed amendments to GINA are favorable and show that the EEOC does not want to be an impediment to wellness programs.

The following changes, in part, are proposed to GINA:

A key proposed change in GINA involves incentivized wellness programs. The changes would cap the dollar value of incentives at 30% of the total cost of group health coverage for a family or, if only the employee is covered, 30% of self-only coverage. This is a key concession by the EEOC. The EEOC wellness rules under the ADA would have capped wellness incentives at 30% of the cost of self-only coverage.

Additionally, it appears that these limits will include both participatory and outcome-based inducements. The 30% valuation will also include financial and “in-kind” inducements (e.g., paid time off, etc.).

It also appears that a 50% surcharge for tobacco users will still be permitted. There is some indication that this surcharge is only permitted for self-reported tobacco use, not smoking determined by a blood test or other examination.

Lastly, the proposed rules indicate that an employer can seek information through medical questions or medical examinations (or both) about an employee’s spouse who is covered under the health plan, but not information about children.

Final regulations are expected in mid-2016. Be Well Solutions will keep you advised of any updates and the status of the proposed rules. Do not hesitate to contact us with any questions.