Two new federal privacy rules for employer wellness programs were recently issued. The rules outline how employer-based wellness programs must handle the health information they request and receive from employees and their spouses. These rules come into place as growing concerns for employee privacy have been surrounding wellness programs.
Key Organizations Involved
The U.S. Equal Employment Opportunity Commission (EEOC) – Founded in 1965, The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.
Americans with Disabilities Act (ADA) – Passed in 1990, The ADA prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities. The ADA also establishes requirements for telecommunications relay services.
Genetic Information Nondiscrimination Act (GINA) – The 2008 act is a federal law that protects individuals from genetic discrimination in health insurance and employment. Genetic discrimination is the misuse of genetic information.
The primary goal of both rules, according to the EEOC, is to ensure that “wellness programs actually promote good health and are not just used to collect or sell sensitive medical information about employees and family members or to impermissibly shift health insurance costs to them.”
The finalized privacy rules for employer wellness programs are as follows:
Rule 1 – The EEOC is issuing its final rule to amend the regulations and interpretive guidance implementing Title I of the ADA to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations. This rule applies to all wellness programs that include disability-related inquiries and/or medical examinations whether they are offered only to employees enrolled in an employer-sponsored group health plan, offered to all employees regardless of whether they are enrolled in such a plan, or offered as a benefit of employment by employers that do not sponsor a group health plan or group health insurance.
For supplement information on rule 1, please click here.
Rule 2 – The EEOC is issuing a final rule to amend the regulations implementing Title II of the GINA of 2008 as they relate to employer-sponsored wellness programs. This rule addresses the extent to which an employer may offer an inducement to an employee for the employee’s spouse to provide information about the spouse’s manifestation of disease or disorder as part of a health risk assessment (HRA) administered in connection with an employer-sponsored wellness program. Several technical changes to the existing regulations are included.
For supplement information on rule 2, please click here.
Both privacy rules for employer wellness programs will ban employers from requiring employees to agree to the sale, exchange, transfer or other disclosure of their health information in order to participate in a wellness program to receive an incentive. Employers must notify employees about what personal information a wellness program will collect, who the information will be shared with, and for what purpose the information will be shared.