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  • My employer offers a workplace wellness program that increases premiums for employees who don’t participate. The program doesn’t require people to meet health targets or attend classes, but does require people to answer questions about personal health and lifestyle and to grant access to our medical records. Is this allowed?

My employer offers a workplace wellness program that increases premiums for employees who don’t participate. The program doesn’t require people to meet health targets or attend classes, but does require people to answer questions about personal health and lifestyle and to grant access to our medical records. Is this allowed?

It is not clear.  In 2016 the federal government published new regulations setting requirements for workplace wellness programs that ask individuals to disclose personal health information or genetic information.  These types of “medical inquiries” are allowed in “voluntary” wellness programs.  The new regulation defined “voluntary” to include programs that apply penalties as large as 30 percent of the cost of the health plan (self-only coverage) if you don’t participate.  (If participation incentives also apply to your spouse, the maximum incentive is twice that amount for the two of you, together.)  However, a federal judge later ruled that these financial incentive standards were not justified by the federal government and vacated that part of the regulation for employer plan years beginning on or after January 1, 2019.

The regulation established other requirements that remain in effect for wellness programs that collect personal health information include:

  • The program must be “reasonably designed,” meaning there must be a reasonable chance that it could promote health and wellness.
  • The wellness program can access personal health information, but it cannot share identifiable information with the employer to use for employment purposes, such as hiring or promotion.
  • The wellness program that collects personal health information must either use information to design programs to address or treat employee health problems, or provide feedback to individuals about their risk factors.
  • Wellness programs that collect personal health information must provide a notice that clearly explains what medical information will be obtained, how it will be used, who will receive it, and restrictions on disclosure that apply.
  • Wellness programs cannot, as a condition of participating in the program or earning an incentive, require people to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information (except to the extent otherwise permitted under a reasonably designed program.)

For more information about workplace wellness program rules, or to file a complaint, contact the Federal Equal Employment Opportunity Commission (EEOC) at https://www.eeoc.gov/contact/index.cfm

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