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July 2016


Time for a Wellness Check on your Wellness Program? New EEOC Regulations Could Diagnose Need for Change



For more information about this alert, please contact:


Henry Talavera


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Meredith A. VanderWilt


Email | Bio


Josephine S. Harvey


Email | Bio


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In light of new rules from the Equal Employment Opportunity Commission (EEOC), employers should examine their wellness programs now (and during open enrollment for next year) to determine the potential impact of the final regulations, as many wellness programs will need to be changed to comply with the new rules.

In May, the EEOC published its much anticipated final regulations implementing the Genetic Information Nondiscrimination Act of 2008 (GINA) and the Americans with Disabilities Act (ADA), as those laws relate to employer-sponsored wellness programs. The most significant changes under the EEOC's final rules require compliance for plan years beginning on or after January 1, 2017, but some clarifications are effective immediately.

Specifically, the EEOC provided guidance on how employers can incentivize employees to participate in wellness programs that include disability-related inquiries and medical examinations. The EEOC also clarified the extent to which an employer may offer an inducement for an employee's spouse and children to provide information regarding the spouse or child's diseases or medical disorders as part of a health risk assessment (HRA).

With respect to the new requirements for next year, the major takeaways for employers with respect to their wellness programs include:

  • New 30% Limit on Certain Incentives

    If an employer's wellness program includes a medical examination and/or a disability related inquiry, there is a new incentive limit of 30% of the total cost of employee-only coverage.

    This rule applies even if that wellness program is:

    (1) NOT tied specifically to the employer's group health plan (i.e., the incentive is offered to all employees regardless of their eligibility for the company's health plan)

    (2) a "participatory" wellness program (i.e., the employee receives an incentive simply by participating in the wellness program without having to achieve any specific medical outcome), or

    (3) a tobacco cessation program that requires blood work (or other medical examination) to confirm the absence of nicotine use

  • Be Careful What Questions Are Asked of an Employee's Dependents

    If a wellness program asks questions about the health status of an employee's dependents (spouse or children) through an HRA or otherwise, employers should review those questions immediately, as some inquiries may no longer be permitted under the final EEOC regulations, or they may be subject to the above limitation on permitted incentives.

  • New Notice Requirement

    Participants must be notified of certain information when the wellness program requires a medical examination, whether or not such wellness program is part of a group health plan. 

Click here for more detailed information on the changes for next year and the clarifications that could affect your wellness program today.

To view the full alert as a downloadable pdf, please click here.

For More Information

Please contact the authors or one of Polsinelli's other Employee Benefits and Executive Compensation attorneys should you have any concerns regarding the possible impact of these new EEOC rules on your company's wellness program.




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