Wellness Rules Present Design Challenges for Employers

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By Kristen Ricaurte Knebel

June 7 — It's the little differences between the ACA's wellness regulations and the newly finalized EEOC wellness regulations that could get employers in hot water if they don't pay close attention, attorneys told Bloomberg BNA.

There is an increased complexity with the new wellness rules that were issued under the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act and the existing rules under the Affordable Care Act, Rachel Leiser Levy, principal with Groom Law Group Chartered in Washington, told Bloomberg BNA June 6.

While they “echo” each other, they aren't identical, which means employers need to pay attention to the particulars of each law to make sure they are in compliance, she said.

Garrett A. Fenton, a member at Miller & Chevalier Chartered in Washington, told Bloomberg BNA June 6 that “one of the big things for employers to understand is that there are differences between the previous rules under the” Affordable Care Act and Health Insurance Portability and Accountability Act and the new rules under the ADA. “They were intended to be similar, but they’re not identical,” he said.

On May 16, the Equal Employment Opportunity Commission issued final rules amending existing GINA rules and creating new ADA regulations that detail how employers can offer inducements for wellness plan participation while ensuring they don't coerce employees or their covered spouses to submit to involuntary medical exams or to divulge genetic information, which includes family medical history ( 34 HRR 540, 5/23/16 ).

Far Reaching

Fenton said that one big thing that employers need to consider is that the new ADA final rules are farther reaching and apply to all wellness programs, whether or not they are offered as part of a group health plan.

For instance, a wellness program that isn't tied to a group health plan would be subject to the new rules under the ADA, but not subject to the ACA rules, Fenton said.

There's a quirk to that too, because the ADA rules only apply to wellness programs that include a “disability-related inquiry, or requires a medical exam,” he said. While not directly defined in the final rules, Fenton said a “disability-related inquiry” would be “any type of question that solicits a response from an employee that in any way identifies a disability.”

Because of this requirement, Levy said employers need to make sure that any plan that might fall into that definition is compliant with the new rules.

Into the Weeds

The new rules allow employers to offer employees and their spouses incentives of up to 30 percent of the costs of self-only coverage.

This diverges from the ACA a bit, because under the ACA, plans can't have incentives of more than 30 percent of the cost of coverage under a group health plan, Fenton said.

But, under the ADA rules, employers have to look at all wellness programs subject to the new rules that are being offered—whether they are participatory or health-contingent—to see if they are under the 30 percent limit, he said.

“It shows how in the weeds employers need to be" that they need to make sure they are complying with the ADA rules and the ACA rules, along with "a host of other legal and tax issues that wellness programs implicate,” Fenton said.

To contact the reporter on this story: Kristen Ricaurte Knebel in Washington at kknebel@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com