On May 17, 2016, The Equal Employment Opportunity Commission (EEOC) released the final regulations for application of the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) to wellness programs. Specifically, employers that sponsor wellness programs that request health information from employees (and, where applicable, their spouses) are subject to the Health Insurance Portability and Accountability Act (HIPAA). This means that the employer must protect confidentiality when using medical questionnaires, health risk assessments (HRA), and biometric screenings. The final rules are effective the first day of the plan year beginning on or after January 1, 2017. For clarifications of existing regulations, the effective date is the date the final regulations were published (May 17, 2016).
Both the ADA and GINA prohibit employers from obtaining and using information regarding their employees' and their family members’ health conditions. As part of a voluntary wellness program, however, employers are permitted to ask health-related questions and conduct medical examinations (e.g., biometric screenings). The recently-released final rules address the extent to which an employer may offer an inducement to an employee for the employee’s spouse to provide information about their own health status as part of an HRA. The final rules for GINA include only technical corrections to the proposed rules. The EEOC final rules related to the ADA address the extent to which employers may use incentives to encourage employees to participate in wellness programs, wherein the participants may be asked to respond to disability-related questions or undergo medical examinations.