On April 20, 2015, the Equal Employment Opportunities Commission (“EEOC”), which is responsible for enforcement of the ADA, published a proposed rule providing guidance on what an employer-sponsored wellness program must do to comply with the ADA. While this is currently a proposed rule, the EEOC has stated that it is “unlikely” to take any enforcement action against an employer that complies with it. This is an important indication given that the EEOC has already filed suit against employers in several cases challenging their wellness programs.
Although the ADA provisions have similarities to the HIPAA provisions, the ADA provisions are much broader in that they include more restrictions. In addition, even if your plan is HIPAA compliant, it is not necessarily ADA compliant warranting a careful review of your plan.
For a more detailed discussion on the PR, as well as, Wellness Programs and the ADA, please review the HIPAA Non-discrimination reference materials.
| Sampling of ADA/HIPAA Differences | ||
| ADA | HIPAA | |
| Definition of Voluntary: A wellness program incentive will not cause the program to be involuntary if the total amount of the incentive under all programs does not exceed 30% | Uses “employee-only” coverage as the cost basis of the program. | Permits the use of “family coverage” as the cost basis where the program applies to family members as well as the employee. |
| Incentive limitation | Applies to health contingent & participatory programs | Applies to health contingent programs |
| Tobacco Cessation Allowable Incentives | If tobacco cessation program does not require medical tests, it can increase allowable incentive up to 50% limit. However, a tobacco cessation program that actually tests for the presence of nicotine or tobacco would be subject to the 30% limit. | Increases the allowable incentive up to 50% of the cost of individual coverage for tobacco cessation programs |
| Reasonable Design | Elaborate description of what this means. | Vague description of what this means. |
| Reasonable Accommodations | Applies to health contingent & participatory programs | Applies to health contingent programs |
COMMENTS
The EEOC has invited comments on the PR. Instruction for submitting comments can be found at the Federal eRulemaking Portal. Use RIN number 3046–AB01. The deadline for filing comments is June 19, 2015.