Note: Recent events involving the EEOC have likely changed the ADA and GINA provisions described here. However, this blog provides good foundational knowledge about the three major laws that impact workplace wellness incentives so that changes in those laws can be understood with some context.
Abstract
Offering rewards or financial incentives to encourage employee and family member participation in workplace health assessments (HAs) and biometric screens are gaining attention and popularity. Yet, not all the attention has been good. On the legal front, the Equal Employment Opportunity Commission (EEOC) questioned the use of these financial incentives through recent lawsuits and proposed rules. Although workplace wellness program designers have relied on the financial incentive guidance provided by the Health Insurance Portability and Accountability Act (HIPAA) and Affordable Care Act (ACA), such guidance is not legally sufficient. Workplace wellness program designers must also familiarize themselves with the requirements under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), particularly when HAs and biometric screens offer financial incentives in return for employee medical and family medical history information. This white paper outlines the legal parameters under key workplace wellness program laws to help program designers start on the path to compliance in the critical area of HA and biometric screen activities. Readers should note that the legal parameters discussed in this white paper are current as of late 2015 and do not capture any future modifications to the current rules.
Introduction
The issue that seems to be igniting push back from employees and the government are financial incentives, the use of which by employers is gaining popularity. According to a recent Rand Corporation study, of the 51% of employers who offer workplace wellness programs, 69% use financial incentives as a strategy to encourage employees to use wellness programs.[i] A majority of employee wellness programs, 72% to be exact, include health assessments (HAs) and biometric screens.[ii] Incentives are most common for health assessment completion and lifestyle management programs, with about 30% of employers with a wellness program offering such incentives.[iii] Financial incentives may include cash, cash equivalents (e.g., discounted gym memberships), and novelty items (e.g., t-shirts or gift cards).[iv] Employers also link incentives to the employees’ share of health plan premiums, health reimbursement account contributions and plan cost-sharing, with incentives impacting the employee share of health plan premiums being the most popular.[v]
Evidence shows financial incentives increase wellness program participation. According to the Rand study employers who do not use incentives had a median employee participation rate of 20%, compared to a 40% median employee participation rate for employers who used monetary or nonmonetary incentives.[vi] Employers that used penalties or surcharges for not participating boosted their median employee participation rates to 73 percent.[vii] Other studies find that older men are most likely to respond to incentives, as are employees who are in generally poorer health, and that most employees want incentives to help motivate them to make lifestyle improvements.[viii]
The Laws behind Offering Financial Incentives
Several federal laws address offering financial incentives in workplace wellness programs. Specifically, offering financial incentives in conjunction with completing HAs or biometric screens implicates the Health Insurance Portability and Accountability Act (HIPAA), the Affordable Care Act (ACA), the Americans with Disabilities Act (ADA) and the Genetic Information and Nondiscrimination Act (GINA).
HIPAA/ACA
HIPAA nondiscrimination rules were the first rules to create the ability to offer financial incentives within workplace wellness programs, and the ACA expanded upon that ability.[ix] HIPAA/ACA divides wellness programs into two groups: 1) participatory; and 2) health contingent. Health contingent programs are further divided between activity-only and outcomes-based programs.
In a participatory program, a participant earns financial incentives by merely participating in the program. The participant is not expected to achieve a certain wellness goal, such as losing a certain amount of weight or having a certain blood pressure level. That is in contrast to participants in health-contingent programs. In those programs, financial incentives are tied to achieving a health status goal, such as a certain weight or blood pressure (outcomes-based), or completing an activity that some individuals may be unable to do or have difficulty doing because of a health factor (activity-only), such as severe asthma, pregnancy or a recent surgery. Some examples of activity-only programs may be walking, diet or exercise programs.[x]
HIPAA/ACA limits financial incentives to no more than 30 percent of the cost of health coverage, but the incentive can climb as high as 50 percent of the total cost of coverage to the extent that the additional 20 percent is in connection with a program designed to prevent or reduce tobacco use.[xi] HIPAA/ACA calls these financial incentives “rewards,” but the law’s definition of “reward” is a bit misleading. The law defines “reward” as including both obtaining a reward and imposing a penalty.[xii] So, the 30 percent (or 50 percent for tobacco cessation programs) limit can be applied to the amount of the reward or the amount of the penalty.
Two key points to remember about the HIPAA/ACA financial incentive law is first, that it applies to group health plans only. If a wellness program is not part of a group health plan program, this incentive law does not apply. Second, the HIPAA/ACA financial incentive limit applies to health contingent wellness programs only. Financial incentive limits under HIPAA/ACA do not apply to participatory programs.
ADA
The ADA is enforced by the Equal Employment Opportunity Commission (EEOC) and prohibits discrimination by employers on the basis of disability in regard to terms, conditions and privileges of employment.[xiii] Terms, conditions and privileges of employment can include participating in wellness programs. Thus, workplace wellness program designers must ensure that all employees, regardless of disability, have an equal opportunity to participate in the program and offer reasonable accommodations so they may participate and earn any financial incentives.
Discrimination under the ADA includes requiring medical examinations and making disability-related inquiries, including medical history inquiries, unless one of two exceptions applies: 1) such exam or inquiry is job-related and consistent with business necessity; or 2) the medical exam is voluntary and part of an employee health program available at the work site.[xiv] The restriction on asking questions about an employee’s medical status or conducting medical screenings applies regardless of whether the employee is disabled.[xv]The EEOC has defined a medical exam as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.”[xvi] These exams may include: 1) vision tests; 2) blood, urine and breath analyses to check for alcohol use or to detect disease or genetic markers; 3) blood pressure screening and cholesterol testing; 4) range of motion tests that measure muscle strength and motor function; 5) pulmonary function tests; and 6) psychological tests that are designed to identify a mental disorder or impairment.[xvii] Medical exams do not include tests to determine the current illegal use of drugs; general well-being questions; physical agility tests or physical fitness tests to measure an employee’s ability to perform job tasks; or psychological tests that measure personality traits such as honesty, preferences and habits.[xviii]
For purposes of workplace wellness programs, a key term in the ADA prohibition against employee medical exams and medical history inquiries is the word “voluntary;” the ADA permits such exams and inquiries if they are part of a “voluntary” workplace wellness program. Until recently, the only guidance the EEOC provided with regard to the meaning of “voluntary” was that the employer could neither require participation nor penalize employees who do not participate.[xix] However, recent proposed rules by the EEOC under the ADA shed additional light on what the EEOC means by “voluntary.” Specifically, the EEOC proposed rules that would limit financial incentives in both participatory programs that involve HAs and/or biometric screens, as well as health contingent wellness programs.[xx]
The proposed ADA rules permit financial incentives for wellness programs that are part of a group health plan as long as the value of that incentive does not exceed 30% of the total cost of employee-only coverage. There are a few other things to note about these proposed ADA rules.
First, like the HIPAA/ACA incentive rules, the 30% guidance only applies to wellness programs that are part of group health plans. The EEOC did not provide any financial incentive guidance for wellness programs that fall outside a group health plan. The EEOC’s focus on group health plan financial incentives raises interesting questions about the EEOC’s authority over group health plans. The ADA contains a “safe harbor” for health plans and allows such plans to conduct medical inquiries and exams, regardless of the voluntary nature of such inquiries or exams, in order to administer the terms and risks of the plan.[xxi] This safe harbor saved the HA and biometric screen used by Broward County from violating the ADA in the Seff v. Broward County case from 2012.[xxii] Broward County employees who refused to participate in the wellness program had to pay a $20 charge on each biweekly paycheck.[xxiii] In the preamble to the proposed ADA rule, the EEOC disagreed with the Seff court’s reasoning, stating that reading the ADA insurance safe harbor as exempting workplace wellness programs from ADA restrictions would render the ADA’s “voluntary” provision for wellness programs “superfluous.”[xxiv]
Second, the ADA incentive limit applies to participatory wellness programs that include HAs or biometric screens. The proposed rule limits the total maximum incentive available under the wellness program (whether the program is a participatory program or a health-contingent program or some combination of the two) to 30% of the total cost of employee-only coverage.[xxv]
Third, the EEOC specifies that the 30% financial incentive maximum applies to both financial and in-kind incentives, such as time-off awards, prizes or other items of value.
Fourth, tobacco cessation programs get special treatment. The EEOC does not consider tobacco cessation programs that merely ask employees whether they use tobacco and whether they ceased using tobacco upon completion of the program as “disability-related inquiries or medical examinations” as subject to the ADA rules.[xxvi] Therefore, the ACA incentive maximum of 50% of the total cost of employee coverage could apply to those programs. However, if the tobacco cessation program includes a biometric screen or other medical exam that tests for the presence of nicotine or tobacco, such program would qualify as a medical examination subject to the ADA 30% maximum financial incentive.[xxvii]
Fifth, and finally, the EEOC stresses the omnipresent importance of providing reasonable accommodations to employees with disabilities so that they may earn whatever financial incentive an employer offers, including incentives for participatory programs. Specifically:
Title I of the ADA prohibits discrimination against individuals on the basis of disability in regard to employment compensation and other terms, conditions, and privileges of employment, including fringe benefits available by virtue of employment, whether or not administered by [the employer]. The ADA also requires employers to provide reasonable accommodations (modifications or adjustments) to enable individuals with disabilities to have equal access to the fringe benefits offered to individuals without disabilities.[xxviii]
Thus, workplace wellness program designers should at all times account for equal access to incentives for all employees.
GINA
GINA has two titles of relevance to workplace wellness program design. Title I applies to “group health plans” and Title II applies to employers. The EEOC enforces GINA Title II, while the Departments of Labor, Health and Human Services and Treasury enforce GINA Title I. GINA Title I prohibits group health plans from collecting genetic information, either for underwriting purposes or prior to or in connection with enrollment.[xxix] “Underwriting purposes” includes changing deductibles or other cost-sharing mechanisms, or providing discounts, rebates, or other premium differential mechanisms in return for activities such as completing an HA or other wellness activity.[xxx] Thus, group health plans that offer premium discounts, for example, in exchange for completing an HA or biometric screening that collects genetic information (defined below) likely implicate GINA.
GINA Title II prohibits employers from requesting, requiring or purchasing genetic information with respect to an employee or an employee’s family member, except in certain limited cases.[xxxi] One of those cases applies to voluntary wellness programs.[xxxii] According to the EEOC, genetic information is not provided voluntarily if the individual is required to provide the information or penalized for not providing it.[xxxiii] The EEOC recently released further guidance about the voluntary disclosure of genetic information in workplace wellness programs, discussed below.
Some key definitions that apply to workplace wellness programs include “genetic information,” “family medical history,” “manifestation,” and “family.” “Genetic information” means information about 1) the individual’s genetic tests; 2) the genetic tests of an individual’s family members; and 3) the manifestation of a disease or disorder in the individual’s family member (i.e., family medical history).[xxxiv] “Family medical history” means information about the manifestation of disease or disorder in family members of the individual.[xxxv] “Manifestation” of disease” means a person has been or could reasonably be diagnosed by a health care professional with appropriate training and expertise in the field of medicine involved.[xxxvi] “Family” includes individuals related to the employee by blood, marriage or adoption.[xxxvii] Therefore, GINA considers an employee’s spouse or adopted child a family member subject to the rule.
As highlighted in the above definitions, GINA concerns arise when a workplace wellness program conducts HAs that ask family medical history questions of the employee and family members or conducts biometric screens of an employee’s family members whose results can show “manifestation” of a disease or disorder. An employee wellness program, whether sponsored by a group health plan or not, that asks employees and family members questions about whether anyone in their family has or had a disease or disorder may violate GINA if it ties financial incentives to answering those questions. That is because the program arguably is requiring or purchasing “genetic information,” undermining the voluntary nature of the disclosure. However, GINA regulations do permit financial inducements for completing an HA containing family medical history questions so long as the employer makes clear that the incentive will be made available whether or not the participant answers those questions.[xxxviii]
Furthermore, if a workplace wellness program ties a financial reward to an employee’s family member’s participation in an HA or biometric screen, the HA or screening program may violate GINA. As noted above, “genetic information” includes information about the manifestation of disease in family members. “Family members” include spouses and adopted children, as well as family members by blood. HAs or biometric screens of family members may reveal the manifestation of a disease or disorder in those family members. Tying a financial reward, such as a premium discount, to a family member’s participation in a biometric screen would violate GINA Title I, which prohibits health plans from using genetic information for “underwriting purposes” (recall that “underwriting” includes offering discounts or other types of payments in return for activities like completing an HA or participating in a wellness program). It would also arguably violate GINA Title II, which prohibits employers from requiring or purchasing “genetic information,” unless the biometric screen is part of a “voluntary wellness program.”
As noted above, a program is not voluntary if an individual is penalized for not providing the genetic information. Until recently, there was little guidance as to what the EEOC considers “voluntary” under GINA. However, on October 30, 2015, the EEOC released long-awaited proposed rules on how GINA may interact with workplace wellness programs.[xxxix] The proposed regulations would make a limited exception to the general prohibition on offering incentives in exchange for genetic information. Specifically, the proposed rules allow wellness programs that are part of a group health plan to offer employees incentives (which may take the form of a reward or penalty and may be financial or in-kind) for an employee’s spouse to provide information about the spouse’s own current or past health status as part of a HA or medical examination (e.g., to detect high blood pressure or high cholesterol) or both. For the incentive regarding spousal information to be allowed, the spouse must be covered under the health plan. The incentive must be for obtaining the spouse’s current or past health status only; no reward is allowed to obtain other genetic information about the spouse, such as results of genetic tests. Also, no incentives are allowed for obtaining the current or past health status information of an employee’s children or for other genetic information of an employee’s child.
The amount of the incentive for obtaining information about current or past health status of the employee and employee’s spouse is 30% of the total cost of coverage for the plan in which the employee and any dependents are enrolled. Like the proposed ADA rules, the EEOC seems to have selected a 30% limit to align with the HIPAA/ACA incentive rules. Thus, if an employer offers health insurance coverage at a total cost of $14,000 for employees and their dependents, and $6,000 for employee-only coverage, the maximum inducement the employer can offer for the employee and spouse to provide information about their current or past health status is 30% of $14,000, or $4,200.
The proposed rules break down the incentive requirements even further, stating that the maximum incentive the employer can offer employee alone for providing information about his or her current or past health status is 30% of the cost of self-only coverage. So, in the above example, the maximum incentive an employer could offer the employee for his or her current or past health information is 30% of $6,000, or $1,800. To calculate the maximum incentive an employer could offer the employee for his or her spouse’s current or past health information, one would subtract the $1,800 from the $4,200 maximum, which in this example would be $2,400. This $2,400 incentive may be received for the spouse’s participation in the health assessment or biometric screen. Alternatively, an employer could use part of that $2,400 incentive for the spouse’s participation in the health assessment or biometric screen, and a portion for rewarding participation by the employee and the employee’s other dependents (including the spouse) in other activities that promote health or prevent disease.
The proposed GINA rules also prohibit employers from conditioning participation in a wellness program or providing any reward to an employee, spouse or other covered dependent in exchange for their agreement permitting the sale of genetic information, including information about the current health status of an employee’s family member. It is very important for wellness program providers and purchasers ensure that their agreements do not permit the downstream sale of genetic information, which includes current health status information of an employee’s family member.
Before an employee or spouse provides health information as part of an HA or biometric screen, the proposed GINA rules state that the spouse must provide prior, knowing, voluntary and written authorization. GINA already requires such authorization for employees when providing genetic information.[xl] The proposed rules ensure that spouses who agree to provide information about their current or past health status when participating in a health assessment or biometric screen also provide such authorization. The authorization form that the spouses sign must describe the confidentiality protections and restrictions on the disclosure of genetic information. The employee does not have to sign an authorization for the spouse to provide information about his or her current or past health status.
Similar to the proposed change made to the ADA rules, the EEOC added language that would allow employers to obtain genetic information (whether through incentives or otherwise) only if acquiring that information is part of offering a wellness program that is “reasonably designed to promote health or prevent disease.” In other words, the program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for violating GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. For example, according to the EEOC, collecting information on a health questionnaire without providing follow-up information or advice would not be reasonably designed to promote health or prevent disease.
The proposed GINA rules also state that the program must not be overly burdensome in terms of amount of time for participation, or requiring unreasonably intrusive procedures or significant costs on employees. Finally, a program is not reasonably designed if it exists merely to shift costs form the employer to targeted employees based on their health.
Like the proposed ADA rules, compliance with the proposed GINA rules is not necessary at this time, but it is encouraged. In a Question and Answer document released concurrently with the proposed rule, the EEOC states that “[w]hile employers do not have to comply with the proposed rule before it formally takes effect, they certainly may do so.”[xli]
Guidance from Recent EEOC Cases
One finds additional, valuable insight with regard to how the EEOC views ADA and GINA compliance within the workplace wellness context from three recent lawsuits filed by the EEOC against employer wellness programs that used financial incentives. These cases include: EEOC v. Orion Energy Systems, EEOC v. Flambeau, Inc. and EEOC v. Honeywell International, Inc. In the Orion Energy case, the EEOC alleged that Orion Energy implemented a wellness program that included a health risk assessment and fitness test for its employees.[xlii] The health risk assessment asked the employees medical history questions and also had a blood work component.[xliii] According to the EEOC complaint, Orion Energy required nonparticipants in the program to pay the entire premium cost of their health insurance coverage, while Orion Energy paid much of the cost of coverage for employees participating in the program.[xliv]
Similarly, the EEOC alleged that Flambeau implemented a wellness program that required employees to undergo biometric testing and a health risk assessment.[xlv] According to the EEOC, employees who fail to complete the biometric test and health risk assessment are responsible for paying 100 percent of their health insurance premium, while employees completing the test and health risk assessment paid a much lower cost.[xlvi]
Finally, in the Honeywell case, the EEOC alleged that Honeywell required its High Deductible Health Plan participants (including spouses) to submit to a biometric test.[xlvii] Failure to do so resulted in denial of a $250-$1500 Health Savings Account contribution, a $500 surcharge and a $1000 tobacco surcharge.[xlviii] With regard to the tobacco surcharge, Honeywell offered three alternatives to the biometric test to avoid the surcharge: 1) enroll in a tobacco cessation program (actual cessation not required); 2) submit a physician report that indicates that neither the employee nor spouse use tobacco; or 3) work with a health advocate to establish that the employee or spouse is not a tobacco user.[xlix] The Honeywell court dismissed the EEOC’s motion to stop Honeywell from imposing all penalties and costs against any Honeywell employee who refuses to undergo biomedical testing in conjunction with Honeywell’s wellness program.[l]
In all three EEOC cases identified above, the EEOC alleged that the companies’ wellness programs violated the ADA. The EEOC’s position is that the HA or biometric test constituted an involuntary medical examination that is not job-related.[li] As noted above, the ADA prohibits employee medical examinations, such as HAs or biometric tests, unless those inquiries are job-related and consistent with business necessity.[lii] The ADA provides an exception for medical inquiries that are part of a “voluntary” wellness program.[liii]
The EEOC did not view having to pay 100 percent of one’s health insurance premium for failing to participate in the wellness program, as was the case in Orion Energy and Flambeau, to be voluntary. It also did not view the large penalties imposed by Honeywell as promoting a voluntary program. Furthermore, in the Honeywell case, the EEOC alleged a violation of GINA because the biometric screen offered a financial inducement in exchange for information about the manifestation of disease in employees’ spouses, who are considered “family” under GINA.[liv]
Despite the alleged ADA and GINA violations, the wellness programs at each of these employers complied with the HIPAA/ACA incentive rules.[lv] Specifically, these programs were “participatory” wellness programs under HIPAA/ACA, meaning that to obtain the reward, the participant does not have to satisfy a health status factor.[lvi] Unlike health contingent programs, which do have a limit on the amount of a “reward,” participatory programs have no limit on the financial reward that is used to encourage participation.[lvii] Indeed, the employers in all three cases pointed out that their wellness programs complied with the HIPAA/ACA nondiscrimination standards.[lviii] As a result, under the employers’ reasoning, the wellness programs are legal and should not be facing EEOC criticism. Moreover, each employer in the EEOC cases argued that, regardless of the legality of their program under HIPAA/ACA, their wellness programs fit within the voluntary medical examination provision of the ADA.[lix] As contended by Honeywell, merely providing a financial incentive to participate in a program does not transform it into an involuntary program.[lx]
The lesson to be learned from the EEOC cases is that just because a program can arguably fit within legal parameters of one law does not mean the program complies with all laws or that the program will be accepted by those it is intended to help. Some employees from those HIPAA/ACA-compliant programs likely felt coerced: the financial incentive in each of those cases put at stake their ability to enroll in the group health plan. The EEOC did not view the financial incentive at issue in those cases as a mere “nudge,” but closer to a mandate. Indeed, the financial incentives in all three cases were beyond the 30% financial incentive limit that the EEOC has now set in the proposed ADA and GINA rules. The employees pushed back by filing complaints with the EEOC with the hope that the EEOC would rule in their favor and not require them to reveal private information to their employer.[lxi]
Current Status of the EEOC Cases
According to Public Access to Court Electronic Records (“PACER”), it appears that the parties in the Honeywell case have settled, as PACER indicates that the case is now closed.[lxii] As a result, the public will not benefit from a court analysis of the legality of the Honeywell wellness program under the ADA or GINA. As for the other two cases, PACER indicates that a court decision stemming from a partial summary judgment motion by the EEOC in the Flambeau case may occur sometime in late 2015 or early 2016.[lxiii] A decision is not likely until sometime in 2016 for the Orion Energy case.[lxiv]
Putting it all Together
So, what do all these laws mean for employee HA and/or biometric screening programs? If the HA or biometric screen is part of a group health plan (which many are), there are limits to offering financial incentives to participate in those HAs or biometric screens. For example, a participatory HA or biometric screening program designer should consider the ADA and GINA proposed rules of a 30% total cost of coverage maximum reward. If the wellness program also includes health contingent components, then the total reward for both the participatory HA and/or biometric screening as well as the health contingent components should not exceed 30% of the total cost of an employee’s health coverage. Before the ADA proposed rules, a program may have been able to exclude any reward tied to a participatory HA or biometric screening because the HIPAA/ACA rules did not impose any reward limit on participatory programs. But the ADA and GINA proposed rules do impose a limit on participatory HA and biometric screening programs, so wellness program designers should account for those rewards when calculating the total reward amount.
Wellness program designers should also keep in mind the 50% maximum reward allowed by the HIPAA/ACA for tobacco cessation programs that do not contain a medical exam (e.g., testing for presence of nicotine) component. If the tobacco cessation program includes a medical exam or biometric screen that tests for the presence of nicotine or tobacco, then the ADA 30% maximum reward applies, according to the EEOC proposed rule.
To the extent that a participatory HA asks family medical history questions of employees or obtains health status information of employee spouses, workplace wellness program designers should obtain the necessary authorizations from the employee and spouse and ensure that any reward does not exceed 30% of the total cost of coverage. Alternatively, the employer could omit employee family medical history questions or obtaining health status information from employee family members altogether. The employer could also administer separate HAs (one containing family medical history questions with no tie to a financial reward and one without family medical history questions that is tied to a reward for completion). Employers may also consider informing HA participants that the reward will be available regardless of whether the employee answers the family medical history questions. Each of these approaches may minimize the risk of a GINA violation.
Conclusion
Tying financial incentives to HA and biometric screen activity raises a number of legal hurdles under HIPAA/ACA, ADA and GINA. Although the information in this white paper does not constitute legal advice, it attempts to outline some of the issues workplace wellness program designers should consider. This white paper does not address a number of other legal issues that exist when conducting HAs and biometric screens, such as confidentiality issues, the HIPAA/ACA five factor test for health contingent programs, timing of the HA or biometric screen in connection with plan enrollment, and health promotion intent issues, to name a few. It also does not address any state laws that may be implicated with financially incentivizing HAs or biometric screens. As a result, it is imperative that workplace wellness program designers review the entire program with legal counsel to ensure that a workplace wellness program is truly compliant within the vast legal landscape.
[i] Soeren Mattke, et al., Workplace Wellness Programs Study: Final Report, Rand Health, at 69 (2013).
[ii] Id.
[iii] Id.
[iv] Id. at 71.
[v] Id. (finding that 37% of employers that use incentives use them toward health plan premiums, 5% use them toward health reimbursement account contributions and 3 percent use them to adjust health plan cost-sharing).
[vi] Soeren Mattke, et al., Workplace Wellness Programs: Services Offered, Participation and Incentives, Rand Corporation, at xii-xiii (2014).
[vii] Id.
[viii] John Wilcox, Those who need wellness most respond to incentives, Business Management Daily (April 10, 2015), available at http://www.businessmanagementdaily.com/43247/those-who-need-wellness-most-respond-to-incentives (last visited April 20, 2015); Andrea Davis, Employees want wellness incentives, despite regulatory uncertainty, Employee Benefits News (January 30, 2015), available at http://ebn.benefitnews.com/news/health-care/employees-want-wellness-incentives-despite-regulatory-uncertainty-2745521-1.html (last visited April 20, 2015).
[ix] 78 Fed. Reg. 33158. 33158-59 (June 3, 2013).
[x] 45 CFR § 146.121(f).
[xi] 45 CFR § 146,121(f).
[xii] Id.
[xiii] 29 USC § 12112(a).
[xiv] 42 USC § 12112(d)(4) (emphasis added).
[xv] 42 USC § 12112(d)(1).
[xvi] EEOC Enforcement Guidance, No. 915-002 (July 27, 2000).
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] 80 Fed. Reg. 21659, 21663 (April 20, 2015) (extending the 30% limit set under HIPAA/ACA to include participatory wellness programs that ask an employee to respond to a disability-related inquiry or undergo a medical examination).
[xxi] 42 USC § 12201(c)(2).
[xxii] Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012).
[xxiii] Id.
[xxiv] 80 Fed. Reg. 21659, 21662, n. 24 (April 20, 2015).
[xxv] 80 Fed. Reg., 21659, 21667 (April 20, 2015) (proposed § 1630.14(d)(3)).
[xxvi] 80 Fed. Reg., 21659, 21668-69 (April 20, 2015).
[xxvii] Id. at 21669.
[xxviii] Id. at 21661-62 (citing 42 USC § 12112(b)(5)(A) and 29 CFR § 1630.9).
[xxix] 45 CFR § 146.122(d).
[xxx] 45 CFR § 146.122(d)(1)(ii).
[xxxi] 42 USC § 2000ff-1.
[xxxii] 29 CFR 1635.8(b)(2).
[xxxiii] 29 CFR § 1635.8(b)(2)(i)(A).
[xxxiv] 29 CFR § 1635.3(c).
[xxxv] 29 CFR § 1635.3(b).
[xxxvi] 29 CFR § 1635.3(g).
[xxxvii] 29 CFR § 1645.3(a).
[xxxviii] 29 CFR § 1635.8(b)(2)(ii).
[xxxix] 80 Fed. Reg. at 66857 (Oct. 30, 2015).
[xl] See 42 USC § 2000ff-1(b)(2)(B).
[xli] See http://www.eeoc.gov/laws/regulations/qanda-gina-wellness.cfm.
[xlii] EEOC v. Orion Energy Systems, Case No. 2:14-cv-1019 (E.D. Wis. 2014), Complaint, ¶ 10.
[xliii] Id. at ¶ 11.
[xliv] Id. at ¶ 16.
[xlv] EEOC v. Flambeau, Inc., 3:14-cv-638 (W.D. Wis. 2014), Complaint, ¶¶ 10-11.
[xlvi] Id. at ¶ 16.
[xlvii] EEOC v. Honeywell, Inc., 2014 WL 5795481, * 1 (D. Minn. 2014).
[xlviii] Id. at * 1-2. It should be noted that the $500 surcharge was not levied against employees whose spouses refused to undergo the biometric test.
[xlix] Id; see also EEOC v. Honeywell, Inc., Case No. 14-CV-04517, Memorandum of Law in Opposition to Plaintiff’s Motion for Temporary Restraining Order and Expedited Preliminary Injunction, dkt. #20, at 11 (D. Minn. Oct. 30, 2014).
[l] EEOC v. Honeywell, Inc., 2014 WL 5795481, * 1 (D. Minn. 2014).
[li] See e.g., Honeywell, 2014 WL 5795481, at * 4.
[lii] Id. (citing 42 USC § 12112(d)(4)(A)) (“A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”).
[liii] 42 USC § 12112(d)(4)(B); see also EEOC Enforcement Guidance: Disability-related Inquiries and Medical Examinations of Employers under the Americans with Disabilities Act Q. 22 (2000) (“A wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”).
[liv] Honeywell, 2014 WL 5795481, * 5; see also EEOC v. Honeywell, Inc., Case No. 14-CV-04517, Memorandum In Support of EEOC’s Application for Temporary Restraining Order and an Expedited Preliminary Injunction, dkt. #4, at 19-26 (D. Minn. Oct. 30, 2014).
[lv] Public Health Service Act § 2705.
[lvi] 42 USC § 300gg-4(j)(1)(B).
[lvii] 42 USC § 300gg-4(j)(1)(B); 42 USC § 300gg-j(3) (limiting the “reward” to no more than 30% of the cost of health coverage under the plan and defining “reward” to include a discount, rebate, waiver of cost-sharing, absence of surcharge or value of a benefit that would otherwise not be provided under the plan); see also 42 CFR § 146.121(f)(5) (allowing up to 50% of cost of coverage reward for tobacco prevention programs).
[lviii] See e.g., Honeywell, 2014 WL 5795481, * 5 (noting Honeywell’s argument that “Congress would not expressly endorse in one federal statute what is illegal under another pre-existing federal statute.”).
[lix] EEOC v. Orion Energy Systems, Case No. 2:14-cv-1019 (E.D. Wis. 2014), Answer, at 5, ¶ 6; EEOC v. Flambeau, Inc., 3:14-cv-638 (W.D. Wis. 2014), Answer, at 5 ¶ 4; EEOC v. Honeywell, Inc., Case No. 14-CV-04517, Memorandum of Law in Opposition to Plaintiff’s Motion for Temporary Restraining Order and Expedited Preliminary Injunction, dkt. #20, at 28 (D. Minn. Oct. 30, 2014).
[lx] EEOC v. Honeywell, Inc., Case No. 14-CV-04517, Memorandum of Law in Opposition to Plaintiff’s Motion for Temporary Restraining Order and Expedited Preliminary Injunction, dkt. #20, at 28 (D. Minn. Oct. 30, 2014) (stating that Honeywell employees are not subject to any discipline or loss of coverage for electing not to participate in biometric screening).
[lxi] See e.g., EEOC v. Honeywell, Inc., Case No. 14-CV-04517, Memorandum In Support of EEOC’s Application for Temporary Restraining Order and an Expedited Preliminary Injunction, dkt. #4, at 3, 23 (D. Minn. Oct. 30, 2014).
[lxii] See PACER entry for EEOC v. Honeywell International, Inc. 14-cv-4517 at https://ecf.mnd.uscourts.gov/cgi-bin/qrySummary.pl?143818 (last visited on September 6, 2015).
[lxiii] See PACER entry for EEOC v. Flambeau, Inc., 14-cv-638 at https://ecf.wiwd.uscourts.gov/cgi-bin/DktRpt.pl?101080682725462-L_1_0-1 (last visited on September 6, 2015).
[lxiv] See PACER entry for EEOC v. Orion Energy Systems, 14-cv-1019 at https://ecf.wied.uscourts.gov/cgi-bin/DktRpt.pl?711610726762059-L_1_0-1 (last visited on September 6, 2015).