Under the Preserving Employee Wellness Programs Act, introducedin the House of Representatives in March 2017 (H.R. 1313),employers may be able to encourage employees to provideidentifiable genetic information and family medical history morestrongly than ever before.

The bill, approved by a House of Representatives committee,would allow employers to ask about family medical history andrequest genetic information as part of a wellness program withoutrunning afoul of the current restrictions on these types ofquestions.

Background on wellness programs

The Health Insurance Portability and Accountability Act of 1996(HIPAA) and the amendments made to it by the Affordable Care Act(ACA) provide an exception to the general prohibition ondiscrimination against individual participants and beneficiaries ineligibility, benefits or premiums based on a health factor.

This exception allows employers to offer premium discounts orrebates, or modify otherwise applicable cost sharing (such ascopayments, deductibles or coinsurance) in return for employees'adherence to certain programs of health promotion and diseaseprevention, subject to certain maximum incentive (or penalty)limits. These programs are more commonly known as wellnessprograms.

In June 2013, the U.S. Departments of Labor, Health and HumanServices, and Treasury (DOL, HHS and Treasury, respectively) issuedfinal regulations on incentives for nondiscriminatory wellnessprograms in group health plans under the ACA and HIPAA, givingemployers what seemed like a good roadmap for designing andoperating wellness programs.

However, these regulations did not address the impact of theAmericans with Disabilities Act, as amended by the ADA AmendmentsAct of 2008 (ADA), or the Genetic Information Nondiscrimination Act(GINA) on employer wellness programs. Both the ADA and GINAgenerally prohibit employers from obtaining and using informationabout employees' health conditions or about the health conditionsof their family members, including spouses.

Both laws, however, do allow employers to ask health-relatedquestions and conduct medical examinations if the employer isproviding health or genetic services as part of a voluntarywellness program.

Therefore, employers wanted to know: What does “voluntary”mean?

Can employers offer the maximum incentive/penalty limitsdescribed in the HIPAA regulations, as amended by the ACA, inexchange for health-related information or participation in medicalexaminations as a part of a wellness program and still comply withthe ADA and GINA?

In May of 2016, the Equal Employment Opportunity Commission(EEOC) answered those questions by releasing final rules describinghow the ADA and GINA apply to employer-sponsored wellness programsthat request health information from employees and their spouses.The final ADA rule provided that wellness programs that are part ofa group health plan and that ask questions about employees' healthor include medical examinations may offer incentives of up to 30percent of the total cost of self-only coverage and still beconsidered “voluntary,” in compliance with the ADArequirements.

Similarly, the final GINA regulations provide that an employermay offer a spouse up to 30 percent of the total cost of self-onlycoverage in exchange for his or her participation in the wellnessprogram.

No incentives are allowed in exchange for the current or pasthealth status information of employees' children or in exchange forspecified genetic information (such as family medical history orthe results of genetic tests) of an employee, an employee's spouseand an employee's children.

While the EEOC's final regulations did not coordinate perfectlywith HIPAA/ACA regulations, these sets of regulations, working inconjunction with each other, appeared to be the final word on howwellness programs could be structured, including whether incentivescould be offered, and in exchange for what information.

Since these final regulations were issued, however, it appearsneither employers nor employees are entirely comfortable with theEEOC's interpretation of “voluntary.”

Generally, employers prefer the more expansive approach of theHIPAA/ACA rules, and groups that represent employees have arguedthat employers should not be able to offer any meaningful incentivein exchange for medical or genetic information, because anemployee's forgoing of an incentive would amount to a penalty andtherefore effectively make participation involuntary.

Potential roadmap

It was into this environment that H.R. 1313 was introduced, withthe stated intent to “clarify rules relating to nondiscriminatoryworkplace wellness programs.”

More telling with respect to the intent behind the law is thefact sheet that Representative Virginia Foxx released in connectionwith H.R. 1313, which states that one particular aim of the bill isto “reassert congressional intent” to encourage the development ofemployee wellness programs, and that the “EEOC's actions have hadthe opposite effect, contrary to congressional intent.”

To that end, H.R. 1313 addresses three types of wellnessprograms:

• Wellness programs that offer more favorable treatment forindividuals with adverse health factors.

• Wellness programs that are not offered in conjunction with anemployer-sponsored health plan but provide rewards of no more than30 percent of the total cost of coverage in which the employee andany dependents are enrolled (or no more than 50 percent, ifpermitted by the DOL HHS, and Treasury).

• Wellness programs that are offered in conjunction with anemployer-sponsored health plan that:

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  • – Meet the definitions and conditions governing wellness,disease prevention and health promotion programs outlined inSection 2705(j) of the Public Health Service Act (PHSA);

  • – Provide rewards of no more than 30 percent of the total costof coverage in which the employee and any dependents are enrolled(or no more than 50 percent, if permitted by the DOL, HHS andTreasury); and

  • – Comply with any regulations promulgated with respect toSection 2705(j) of the PHSA by the DOL, HHS and Treasury.

Under H.R. 1313, these three types of wellness programs will beautomatically considered in compliance with the “acceptableexaminations and inquiries” rules set forth in the ADA.

This means that employers could ask for medical histories andhealth appraisals, even in relation to disabilities, and not runafoul of the ADA restrictions. In addition, these wellness programswould be considered compliant under GINA.

H.R. 1313 specifically allows these types of wellness programsto collect information about the manifested disease or disorder ofa family member without being considered to have made an unlawfulacquisition of genetic information with respect to another familymember, and without being in violation of Title I or II ofGINA.

In other words, should H.R. 1313 become signed into law,employers would be able to charge employees who decline to providegenetic information up to 30 percent (and possibly up to 50percent) more for health coverage.

While H.R. 1313 has yet to be approved by the either Senate orthe House, there is some speculation that this legislation may beincluded in future health care reform bills proposed by theRepublican-led effort to “repeal and replace” the ACA.

Should this bill become law, it would have a huge impact on thedesign and implementation of wellness programs going forward.