October 11, 2012

JCEB/EEOC Talk – Much Remains Unclear

Each spring, the ABA’s Joint Commission on Employee Benefits (JCEB) sits down with various government agencies to ask questions about a range of benefit issues.  While the information obtained by the JCEB certainly does not rise to the level of law, nor is it in any way binding upon agencies, it does give some indication about how the agencies are viewing certain situations. 

The discussion between the JCEB and the Equal Employment Opportunity Commission (EEOC) has recently been made public.  Two major subjects were queried.  One relates to wellness programs, and specifically, health risk assessments and the use of financial incentives, and how these issues can be reconciled with the Americans with Disabilities Act (ADA). 

Generally, the ADA prohibits the collection of medical information from employees unless the collection of information is voluntary.  The question becomes, Is the collection of medical information by a health risk assessment voluntary?  If it is not, then the collection of medical information must be in conjunction with a bona fide health plan.  A recent 11th Circuit Court of Appeals panel determined that the collection of medical information through a health risk assessment that is part of a bona fide health plan is permissible (see Keep Wellness in Health Plan, says 11th Circuit, Benefit Beat, September 2012).  The EEOC stands firm on its position that it has not yet determined what constitutes the voluntary collection of medical information in compliance with the ADA.  For the moment then, at least in the 11th Circuit, it remains imperative to keep any collection of medical information part of a bona fide health plan.

Another issue queried by the JCEB relates to the Genetic Information Nondiscrimination Act (GINA) and collection of medical information.  Generally, GINA prohibits the use of genetic information and family medical history for underwriting purposes, or for enrollment or in connection with enrollment.  If a health risk assessment requires a spouse to complete medical information, does this constitute an impermissible collection of family medical history; such as when an employee receives $100 if both the employee and spouse complete a health risk assessment but only $50 if the employee alone completes the health risk assessment.  In this scenario, the response from the EEOC suggests that this would be family medical history and therefore, any reward could not be contingent upon collection of this information.  They make three alternative suggestions:

  1. Provide separate incentives for the employee and the spouse, such as a $50 gift card to each participant completing a health risk assessment.  The downside to this method would be a potential taxable event for the employee if the incentive is paid to the spouse.
  2. A split health risk assessment of family members in which the information gathered relating to lifestyle choices of the family members affecting their health would not be conditioned upon receiving any incentive.   
  3. Offer an incentive to a spouse for participating in a wellness program that does not require medical tests or questions about current medical conditions.  For example, offering family members to participate in a weight management program that encourages exercise and healthy eating and/or incentives for losing a certain amount of weight.

Until these issues have been clarified, caution should be exercised.


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