Feds finalize privacy rules for employer wellness programs

Two new federal rules issued Monday outline how employer-based wellness programs must handle the health information they request from employees and their spouses amid increasing privacy concerns surrounding such programs.

In one rule, the U.S. Equal Employment Opportunity Commission (EEOC) describes how the Americans with Disabilities Act (ADA) applies to such wellness programs, while the other rule describes how the Genetic Information Nondiscrimination Act (GINA) applies.

The primary goal of both rules, the EEOC says in its announcement, is to ensure that "wellness programs actually promote good health and are not just used to collect or sell sensitive medical information about employees and family members or to impermissibly shift health insurance costs to them."

As the EEOC had suggested in a proposed rule last October, the ADA rule affirms that group-health-plan wellness programs that include medical examinations or ask health questions may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule sets the same threshold for an employee's spouse if he or she participates.

Yet no incentives are allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information of an employee, an employee's spouse and an employee's children.

Both rules ban employers from requiring employees or their family members to agree to the sale, exchange, transfer or other disclosure of their health information in order to participate in a wellness program or to receive an incentive. Employers must also notify participating employees about what information a wellness program will collect, with whom it will be shared and for what purpose.

The practice of wellness programs sharing participants' information with vendors has caused particular concern among consumer advocates, who argue that data could end up in the hands of third parties or be used for marketing purposes.

To learn more:
- here's EEOC's announcement
- read the ADA rule (.pdf)
- read the GINA rule (.pdf)

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