If the proposed EEOC wellness rules are accepted by the Biden administration, most wellness programs that make disability-related inquiries or require a medical examination may only offer a “de minimis” award in order to comply with the Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA).
The EEOC suggests a “de minimis” award would be limited to a water bottle or gift card of nominal value. Such rewards would be offered as an incentive for employees to complete a health risk assessment or biometric screening, generally referred to as participatory wellness programs.
A safe harbor within the proposed rules would allow employers to exceed the “de minimis” standard for health-contingent wellness programs, where participants must satisfy a standard related to a health factor. For example, an employee receives a reduced premium contribution for completing a biometric screening and achieving a body mass index (BMI) score of a particular value. For health-contingent programs, the award can be as great as what is allowed under the 2013 Health Insurance Portability and Accountability Act (HIPAA). Under HIPAA, employers can offer a reward as great as 30 percent of the total cost of employee-only coverage, or if the program extends to family members, the reward can be up to 30 percent of the cost of coverage for employees and dependents. For tobacco-related health-contingent programs, the reward can be as much as 50 percent. To comply with HIPAA, these health-contingent programs must meet four additional conditions.
• Individuals must be eligible to qualify for the reward at least once a year.
• The program must be reasonably designed to promote health and prevent diseases.
•The full reward must be available to all similarly situated individuals, and a reasonable alternative (or waiver) must be provided.
•The health plan must disclose in all materials the availability of a reasonable alternative.
Once more is known on the Biden administration’s position on wellness programs, clients can discuss what changes, if any, are needed to ensure programs are compliant.
