Employers required to maintain injury and illness records were to submit their 2017 annual summary of workplace injury and illnesses, Occupational Safety and Health Administration (OSHA) 300A Form, by July 1, 2018. This includes hospitals and other healthcare facilities with over 250 employees. OSHA had expected an estimated 460,192 employers to file the 300A Form by the July 1 date; however only 248,884 had filed by August 3, a month after the actual deadline. Possible reasons to explain this 54% response rate include:
Confusion among employers as to who is legally obligated to file and what documents are to be filed.
The risk of repercussions for employers who fail to report is slight – OSHA can only cite for alleged violations less than six months old, and when the agency has cited employers for such violations, the classification is typically other than serious.
Employers would prefer to risk being issued a citation for failing to report rather than reporting and giving OSHA data which could be used against them at a later date.
OSHA experienced similarly low electronic submissions last December (2017) when the first reporting of the 300A by employers was due. OSHA found that nearly one-third of expected employers failed to submit the 300A Form. In response, OSHA announced it would engage in greater outreach to inform and educate employers of their mandatory obligation to submit the 300A Form. OSHA has also indicated it would conduct a mass mailing outreach to employers who did not submit their 300A forms to inform them of their obligations under the regulation.
Please be aware that employers who are required to submit their 300A Forms but have failed to do so are subject to a citation and a penalty until January 1, 2019, which is the duration of the six-month statute of limitation for OSHA to issue such citations.
The Occupational Safety and Health Administration (OSHA) has initiated a Site-Specific Targeting 2016 (SST-16) Program using the injury and illness information electronically submitted by employers to initiate OSHA inspections. OSHA Directive No. 18-01, CPL 02, effective October 16, 2018.
As of October 16, and for the next 12 months, federal OSHA will be conducting comprehensive, wall-to-wall inspections, either a safety or a health inspection – or both, based on certain employers’ electronic filing in 2017 of their 2016 OSHA 300A Annual Summary forms. These programmed inspections apply to non-construction workplaces – including hospitals and long-term care facilities with 20 or more employees that OSHA selects from among what it calls High-Rate and Low-Rate Establishments.
The SST-16 indicates that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.” The inspection cycles are generated using software that randomly selects the establishments from among those that fall into the categories above. According to OSHA, the purpose of including non-responding employers on the inspection list is to deter employers from failing to report their injury and illness information to avoid inspection. Similarly, OSHA will select a sample of low DART rate establishments to verify the reliability of the 300A data being submitted to the agency. The scope of the inspection will be comprehensive, and not simply limited to recordkeeping practices or potentially hazardous areas or operations that caused an elevated DART rate. Employers who have received a comprehensive safety or health inspection within 36 months of the creation of the SST-16 inspection list will not be inspected again.
If you are in a state with its own OSHA program, your state-run program will have until April 16, 2019, to either adopt the federal OSHA SST inspection plan or to implement their own targeting policies and procedures.
Lessons for Employers
Although employers can prepare to some extent for an OSHA visit when they self-report fatalities, hospitalizations, and amputations, SST inspections are unannounced and random. OSHA has not described in its new directive how an employer can determine whether its DART rate is high enough to make it a High-Rate Establishment subject to such comprehensive inspections. The best advice is that if your healthcare facilities’ DART rate is above the national average for your North American Industry Classification System (NAICS) code, assume that you are subject to, and therefore be prepared for, a comprehensive SST inspection. Most healthcare systems will fall under the NAICS Code 622110 and can be viewed by accessing the NAICS Main Page at https://www.census.gov/eos/www/naics/index.html.
Comprehensive inspections generally consume significant time and resources of the target facility and have historically resulted in substantial citations and financial penalties. Employers that submitted 2016 Form 300A data should compare their establishments’ DART rates with their industry’s average to determine whether they will be subject to targeted inspections. The Bureau of Labor Statistics (BLS) provides several online resources, such as the Incidence Rate Calculator and Comparison Tool. Remember and beware that OSHA also intends to inspect a random sample of establishments with low DART rates “[t]o verify the reliability of the Form 300A data reported to OSHA.” All employers must remain vigilant in maintaining compliance with all applicable OSHA standards.
In the SST-16, OSHA clearly lays out how the agency plans to use the injury and illness data it now electronically collects from employers. Given the tangible impact the data will have on programmed OSHA inspections, employers are advised to take a proactive approach to monitor and address patterns in their injury and illness rates and should take care to ensure they are submitting accurate records to OSHA. As a practical matter, you should probably just do the right thing and get in compliance now so that you do not have to worry about whether your workplace is on a targeted list.
By Stephen A. Burt, BS, MFA
Chair, Government Affairs Committee
Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Pregnancy Discrimination & Work Situations
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
Pregnancy Discrimination & Temporary Disability
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.
So far, a good amount of clinical research has been dedicated to establishing protocols for starting and continuing treatment of patients battling multi-drug resistant bacteria. But until Thursday, there had not been much guidance for healthcare facilities on when their personnel can safely cease contact precautions for these patients.
Their recommendations for the duration of contact precautions — including gowns, gloves, and masks — are, according to a SHEA press release, “specific to key multi-drug resistant organisms,” such as MRSA, Clostridium difficile infections (CDIs), Carbapenem-resistant Enterobacteriaceae (CRE), and Vancomycin-resistant enterococci (VRE).
One of the study’s authors, David Banach, MD, MPH, a hospital epidemiologist at the University of Connecticut Health Center, stated in a press release that “because of the virulent nature of multi-drug resistant infections and C. difficile infections, hospitals should consider establishing policies on the duration of contact precautions to safely care for patients and prevent spread of these bacteria. Unfortunately, current guidelines on contact precautions are incomplete in describing how long these protocols should be maintained. We outlined expert advice for hospitals to consider.”
Per that guidance document — which SHEA says has been endorsed by the Association for Professionals in Infection Control and Epidemiology (APIC), the Society of Hospital Medicine (SHM), and the Association of Medical Microbiology and Infectious Disease Canada (AMMI Canada) — personnel should consider how much time has passed since the most recent positive culture when evaluating whether transmission is likely.
The guidance also advises on patient characteristics that could determine for how long contact precautions should remain in place. For example, the recommendation for CDIs is to continue precautions for at least 48 hours after the resolution of diarrhea, possibly extending that if CDI rates are elevated.
The press release stated that “any guidance should be overseen and revisited by infection prevention and control leadership, especially in outbreak situations” and that the study’s authors recommend facilities “carefully assess their institutional risks, priorities, and resources prior to adopting a new policy on the duration of contact precautions, as well as weigh the cost and feasibility of implementation.”
“The duration of contact precautions can have a significant impact on the health of the patient, the hospital, and the community,” another of the authors, Gonzolo Bearman, MD, MPH, the chairman of the Division of Infectious Diseases at Virginia Commonwealth University, stated in the release. “This guidance is a starting point, however stronger research is needed to evaluate and optimize the use.”
The Occupational Health Safety Network (OHSN) is a free and voluntary system that healthcare organizations and facilities can join to improve their workplace safety and health. OHSN uses existing injury data among healthcare personnel to help identify job titles at highest risk for injury, develop interventions, and objectively measure impact.
OHSN has three existing modules that track incidences of slips, trips, and falls, patient handling injuries, and workplace violence. This year, OHSN offers two new modules: sharps injury and blood and body fluid exposure. These are five common, high risk, preventable injury and exposure events among healthcare workers.
Participating hospitals that voluntarily provide information to OHSN become part of a network that analyzes and reports workplace-specific data to illustrate the magnitude of injury and illness events among workers, monitors the trends, gains access to a library of resources specific to the healthcare sector, and shares lessons learned. OHSN data characterize first, the occupation of the injured worker; second, the type, severity, cause and location of the injury; and finally, information useful in determining how the injury could be prevented in the future. More and more hospitals are using OHSN to analyze their data in minute detail, user-friendly and visually appealing graphs and charts, and to monitor patterns of injuries (e.g., types of healthcare personnel involved, risk factors, circumstances causing injuries), while identifying the most promising prevention strategies.
NIOSH encourages healthcare facilities to enroll in the OHSN and participate in a system that assists with and drives the development of occupational safety and health implementation strategies, keeping healthcare workers safe and healthy on the job in a direct and efficient way.
There is no clear-cut standard or requirement that leather is preferred over any other type of material – but there are times when certain materials are certainly NOT appropriate. OSHA addresses the fact that socks worn with sandals make the sandals safer – NOT! It seems that employees are adamant that the workplace should never infringe on their personal sense of foot fashion or comfort – but my argument has always been, what about safety?
Casual footwear that exposes employees’ feet to injury from dropped contaminated needles and sharps and exposure to pharmaceuticals and hazardous chemicals is a legitimate safety concern in healthcare facilities. OSHA says it is the employer’s responsibility to identify the hazard and situations where reasonable occupational exposure exists and to take measures to prevent the exposure.
One measure is to provide personal protective equipment for those exposure-prone situations. Another solution is to make the choice of footwear subject to the business’s dress code. OSHA has stated several times, “businesses can make this type of dress code determination without regard to a worker’s potential exposure to blood, OPIM or any other recognized hazards.”
When there is occupational exposure to blood or other potentially infectious materials (OPIM), the OSHA bloodborne pathogens standard, 29 CFR 1910.1030, requires the employer to provide, at no cost to the employee, APPROPRIATE personal protective equipment such as, but not limited to, gloves, gowns, eye protection, shoe covers, laboratory coats, or other equipment deemed necessary [See 29 CFR 1910.1030(d)(3)(i)]. Therefore, in circumstances where it is reasonable to anticipate that blood will contact the feet, employers must provide employees with protective gear to cover shoes which will be worn outside. By definition, personal protective equipment will be considered “appropriate” only if it does not permit blood or other potentially infectious materials to pass through to or reach the employee’s work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used [See 29 CFR 1910.1030(d)(3)].
It is the employer’s responsibility to ascertain whether or not there is reasonable likelihood of exposure to blood or OPIM at their workplace. Nonetheless, the determination of appropriate footwear in the absence of the exposure to blood, OPIM, pharmaceuticals and hazardous chemicals or any other recognized hazard would be up to the employer. Plain and simple – OSHA does not forbid employers from setting protocol for prescribed work attire. Nor does the agency say employees can’t wear casual footwear—including sandals, clogs and Crocs. What they say is that you – as the employer – must conduct a workplace hazard evaluation, and if casual footwear is not protective of employees’ feet, the employer must then have a clear policy that casual footwear is not allowed.
OSHA has issued one of its last final rules for this administration, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” The final rule was published December 19, 2016 in the Federal Register (81 Fed. Reg. 91792). OSHA is amending its recordkeeping regulations to clarify that the duty to make and maintain accurate illnesses is an ongoing obligation. The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness. The duty does not expire just because the employer failed to create the necessary records when first required to do so. The newly released amendments consist of revisions to the titles of some existing sections and subparts and changes to the text of some existing provisions. The amendments add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not currently required to be made.
The final rule amends the OSHA recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so. The final rule revises §1904.29(b)(3) to state:
How quickly must each injury or illness be recorded? You must enter each and every recordable injury or illness on the OSHA 300 Log and on a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to record within seven days does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in § 1904.33.
The amendments in this rule are adopted in response to a decision of the United States Court of Appeals for the District of Columbia Circuit. In that case, a majority held that the Occupational Safety and Health Act did not permit OSHA to impose a continuing recordkeeping obligation on employers. One judge filed a concurring opinion disagreeing with this reading of the statute, but finding that the text of OSHA’s recordkeeping regulations did not impose continuing recordkeeping duties. OSHA essentially disregards the original Occupational Safety and Health Act’s (OSH Act) six-month statute of limitations, and the final rule allows OSHA to cite employers for such recordkeeping violations for up to six months after the five-year retention period expires. OSHA disagreed with the majority’s reading of the law, but did agree that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations. This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.
This final rule becomes effective on January 18, 2017.
Article written by Stephen Burt, MFA, BS
Chair, AOHP Government Affairs Committee
You may recall that, in July 2016, AOHP published in E-Bytes a report on the substantial increases to OSHA fines for violations of safety and health regulations. This first increase was a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701 of Public Law 114-74). This regulation allowed OSHA a one-time “catch-up” adjustment for civil penalties of 78%, which could be followed by annual increases in penalties based on the Consumer Price Index.
The Inflation Adjustment Act provides that agencies shall adjust civil monetary penalties notwithstanding Section 553 of the Administrative Procedure Act (APA). Additionally, the Inflation Adjustment Act provides a cost-of-living formula for adjustment of the civil penalties. Accordingly, this final rule sets forth the Department of Labor’s 2017 annual adjustments for inflation to its civil monetary penalties, effective January 13, 2017.
Going forward, the DOL is required to adjust maximum OSHA penalties for inflation, to be published in the Federal Register by January 15 of each new year. The DOL has now finalized the 2017 inflation adjustments, which will nudge the penalties even higher, and on January 18, OSHA published the 2017 annual inflation adjustment for OSHA penalties.
Based on the Consumer Price Index for the stipulated time period, the 2017 annual adjustment for OSHA penalties is marginally over 1%. As a result, increased penalties will apply to any penalty assessed after this date.
Up How Much? Under the 2017 rule, the maximum OSHA civil penalties will be:
Type of Violation 2016 Penalties 2017 Penalties
Other Than Serious Violations $ 12,471 $ 12,675
Serious Violations $ 12,471 $ 12,675
Repeat Violations $ 124,709 $ 126,749
Willful Violations $ 124,709 $ 126,749
Failure To Abate (Per Day) $ 12,471 $ 12,675
Assessing the New Penalties The new OSHA penalty amounts are applicable to OSHA citations issued after January 13, 2017, whose associated violations occurred within the six-month statute of limitations.
OSHA published the following table in the Federal Register, which should help to eliminate any guesswork regarding the level of penalties to be levied based on the date of the violations and when the penalty was assessed.
Which Penalty Level Applies
On or before November 2, 2015
On or before August 1, 2016
Pre-August 1, 2016 levels
On or before November 2, 2015
After August 1, 2016
Pre-August 1, 2016 levels
After November 2, 2015
After August 1, 2016 but on or before January 13, 2017
August 1, 2016 levels
After November 2, 2015
After January 13, 2017
January 13, 2017 levels
What About State Plans Additionally, in response to criticism by the North Carolina Department of Labor and the Kentucky Labor Department, Federal OSHA clarified that it expects State Plans to increase their maximum penalty amounts to align with Federal OSHA. Specifically, OSHA stated:
“[A]ll State Plans must increase their maximum and minimum penalty levels to be at least as high as OSHA’s initial catch-up maximum and minimum penalty levels… and must thereafter increase these maximums and minimums based on inflation.”
OSHA will assist the State Plans to make these necessary changes occur. OSHA’s position has been and continues to be that State Plans must have maximum and minimum penalties that are at least as effective as OSHA’s.
Where Can I Read the Changes? The full text of the Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2017, 82 Federal Register 11 (January 18, 2017), pp. 5373-5387 can be read at:
On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued two rules specifying how employer-sponsored wellness plans can comply with the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA). The new rules, which take effect in 2017, address the extent to which employers may offer inducements to employees in exchange for providing certain information in connection with employer-sponsored wellness plans. The final rules address how employers can design wellness programs to remain “voluntary,” as required under the laws, but still include common features such as offering an incentive (e.g., sweatshirts, reduced health plan premiums or gift cards) for:
An employee or dependent to submit to a medical examination (e.g., biometric screening) or respond to a disability-related inquiry (ADA), and
An employee’s spouse to participate in a program that requires disclosure of the spouse’s manifestation of disease or disorder (GINA).
The two rules provide guidance to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).
So what can be wrong with exchanging a little bit of personal health information for a bigger discount on my health insurance?
Based on results from a survey conducted in April 2016 by the National Business Group on Health and Fidelity Investments, 78 percent of employers offer biometric screenings, while 76 percent offer a health risk assessment program, in 2016. Approximately 72 percent use incentives to engage employees in wellness programs. Many employers are eager to offer incentives because they have faith that wellness programs improve employee health, increase attendance and help reduce soaring healthcare costs.
TWO NEW RULES The ADA Final Rule:The first rule amends the regulations implementing Title I of ADA, which generally prohibits discrimination against individuals on the basis of disability with regard to compensation and other terms of employment. The new rule allows an employer to provide limited incentives in exchange for an employee answering disability-related questions or undergoing a medical examination as part of a wellness program.
Title I of the ADA prohibits employers from discriminating against individuals on the basis of disability, and it generally restricts employers from obtaining medical information from applicants and employees. However, Title I does allow employers to make inquiries about employees’ health or do medical examinations that are part of a voluntary employee health program.
With the ADA Final Rule, the EEOC has described the requirements that must be satisfied for a wellness program to comply with the voluntary employee health program exceptions.
Wellness Programs Subject to the ADA Final Rule: In the Final Rule, the EEOC has clarified the type of wellness programs that the ADA directly applies to, specifically those that require employees to answer disability-related questions or to undergo medical examinations to participate in the program to earn a reward or avoid a penalty.
Maximum Incentive: Like the ACA/HIPAA regulations, the ADA Final Rule limits incentives that may be offered as part of a wellness program at 30 percent of the cost of self-only coverage. Unlike the ACA/HIPAA regulations, the ADA Final Rule does not provide an increased incentive limit for wellness programs designed to reduce or eliminate tobacco use. Therefore, a wellness program subject to the ADA Final Rule can only offer incentives up to the 30 percent limit.
Notice: The ADA Final Rule requires employers to provide participating employees with a notice that clearly explains what medical information will be obtained from the employee and how the medical information will be used and disclosed by the employer.
The GINA Final Rule: The second rule amends the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA), which generally: prohibits the use of genetic information in employment decisions; restricts employers from requesting, requiring or purchasing genetic information; and strictly limits the further disclosure of genetic information. And unless one of six narrow exceptions applies, GINA prohibits covered employers from acquiring employees’ genetic information. “Genetic information,” under the statute, is defined to include family medical history, or the manifestation of a disease or disorder in family members of the individual. It is interesting to note that an employee’s spouse’s medical history is considered the employee’s family medical history. The EEOC’s new rule provides that an employer may offer a limited inducement to an employee whose spouse provides information about the spouse’s manifestation of a disease or disorder as part of a health risk assessment administered in connection with an employer-sponsored wellness program. The rule also prohibits employers from offering inducements in exchange for current or past health status information about children, as well as inducements in exchange for genetic information about spouses and children.
The GINA Final Rule provides a number of requirements that must be satisfied if an employer wishes to offer an incentive in connection with a wellness program that asks for genetic information about an employee or an employee’s family members.
Wellness Programs Subject to the GINA Final Rule: The GINA Final Rule only applies to wellness programs that offer an inducement to an employee or employee’s family member to answer questions about the individual’s current or past health status, or to take a medical examination.
Eligibility for Wellness Programs Subject to the GINA Final Rule: The GINA Final Rule provides that an employee’s spouse may participate in and earn an incentive up to 30 percent of the cost of employee-only coverage. However, it bars children from participating in, or earning incentives through, a wellness program that would otherwise be subject to the GINA Final Rule.
Wellness Programs Subject to the GINA Final Rule Must Be Reasonably Designed: Like the ACA/HIPAA regulations, the GINA Final Rule requires wellness programs to be reasonably designed to promote health. However, the GINA Final Rule provides more stringent criteria than the ACA/HIPAA regulations for determining whether this requirement is satisfied. For example, requiring wellness programs which consist of a measurement, test, screening or collection of health-related information must be able to provide documented results, follow-up information or advice to individual participants.
Notice and Authorization Requirements
ADA Notice Requirement– The ADA rule requires that employers give participating employees a notice that tells them what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential.
GINA Notice/Authorization Requirement – GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members. The GINA Final Rule does not impose new notice or authorization requirements when an employer offers employees an incentive for an employee’s spouse to provide information about the spouse’s manifestation of disease or disorder as part of a health risk assessment (HRA). Rather, the GINA Final Rule affirms that the notice and authorization requirements in the existing regulations implementing Title II of GINA, which apply to an employee’s provision of genetic information as part of a wellness program, also apply when a spouse provides information about the spouse’s manifestation of disease or disorder. Specifically, the spouse must provide “prior, knowing, voluntary and written authorization,” using an authorization form that:
1. Is written so that the individual from whom authorization is being obtained is reasonably likely to understand it.
2. Describes the type of information that will be obtained and the general purposes for which it will be used.
3. Describes the confidentiality protections and restrictions on disclosure of genetic information.
Limits on Incentives HIPAA and the ACA allow wellness programs that are part of an employer-sponsored group health plan to offer incentives for “health-contingent” programs, which offer rewards to employees who perform activities or impose penalties if they don’t perform an activity or fail to achieve a particular outcome. The regulations implementing HIPAA don’t impose any incentive limits on “participatory” programs (such as programs that only ask employees to attend a smoking cessation class) as long as they are available to all similarly-situated individuals, and incentives are made available regardless of a health factor. Unlike HIPAA and the ACA, the ADA places limits on disability-related inquiries and medical examinations related to wellness programs, regardless of how the information obtained is ultimately used. Therefore, EEOC’s final rule makes clear that the limit on incentives applies to any wellness program that requires employees to answer disability-related questions or undergo medical examinations (whether it is participatory or health contingent).
The ADA Final Rule limits the amount of the incentive that an employer can offer for an employee to respond to disability-related inquiries or complete medical examinations in connection with a wellness program, without causing the wellness program to be “involuntary” and therefore violate the ADA nondiscrimination requirements. Similarly, the GINA Final Rule limits the amount of the incentive that an employer can offer for an employee’s spouse to answer questions about his or her manifestation of disease or disorder, without causing the wellness program to violate the GINA nondiscrimination requirements.
Under both the ADA Final Rule and the GINA Final Rule, the amount of the incentive cannot exceed 30 percent of the total cost of self-only coverage. “Total cost” means the employee contribution plus the employer contribution for coverage, and the 30 percent limit, are applied as follows:
If participation in a wellness program is limited to employees enrolled in a group health plan, 30 percent of the total cost of self-only coverage for the group health plan option in which the employee is enrolled.
If the employer offers only one group health plan option and participation in the wellness program is open to all employees (regardless of whether an employee enrolls in the group health plan), 30 percent of the total cost of self-only coverage for the single group health plan option.
If the employer offers more than one group health plan option and participation in the wellness program is open to all employees (regardless of whether an employee enrolls in the group health plan), 30 percent of the total cost of self-only coverage for the lowest cost group health plan option offered by the employer.
If the employer does not offer a group health plan, 30 percent of the total cost of self-only coverage for the second lowest cost Silver Plan for a 40-year-old non-smoker on the state or federal health care exchange in the location that the employer identifies as its principal place of business.
The ADA Final Rule applies the 30 percent incentive limit to wellness programs that require employees to complete a medical examination to test for the presence of nicotine or tobacco. However, the ADA Final Rule reaffirms that a tobacco cessation wellness program that does not involve a medical examination (e.g., merely asking an employee if he or she uses tobacco) is not subject to the 30 percent incentive limit. In that case, the higher 50 percent limit under the HIPAA wellness program nondiscrimination rules applies.
Some Important Points About GINA
The GINA Final Rule reaffirms that asking an employee’s spouse if he or she uses tobacco or requiring a spouse to submit to a blood test to measure nicotine levels are not requests about the spouse’s manifestation of disease or disorder. GINA would not apply to such inquiries.
The GINA Final Rule prohibits an employer from offering incentives for an employee’s spouse to provide the spouse’s own genetic information (including results of the spouse’s genetic tests) and against offering incentives for information about the manifestation of disease or disorder of the employee’s children, or for genetic information about an employee’s children, including adult children.
Confidentiality Protections Both rules also make clear that the ADA and GINA provide important protections for safeguarding health information. The ADA and GINA rules state that information from wellness programs may be disclosed to employers only in aggregate terms. Existing rules under the ADA and GINA prohibit the disclosure of an employee’s medical information (ADA) and individually identifiable genetic information about employees or their family members participating in health or genetic services (GINA). The final rules include a few additional requirements related to confidentiality:
ADA Final Rule:Medical information or history collected by a wellness program may be disclosed to an employer only in aggregate terms that do not disclose and are not reasonably likely to disclose the identity of specific employees (except as necessary to administer the plan).
ADA Final Rule; GINA Final Rule:An employer may not require an employee to agree to the sale, exchange, transfer or other disclosure of health information or waive any confidentiality protections as a condition for participating in or receiving an incentive under the wellness program.
Some Recommendations and Final Thoughts As more and more employers implement wellness programs in an effort to control their healthcare costs, the EEOC has raised concerns that such programs are not truly voluntary and may negatively impact employee protections under the ADA and GINA. According to the EEOC, the final rules issued May 17, 2016 “seek 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.”
The EEOC urges employers to adopt best practices to protect confidentiality of medical information and genetic information. The EEOC suggests that such practices include:
The adoption and communication of strong privacy policies.
The training for all individuals who handle confidential medical information.
Strong encryption of all electronic files that contain private health information.
Effective policies that require prompt notification of employees whose information has been compromised if data breaches occur.
This is a good time for employers to also review their HIPAA privacy and security compliance policies and procedures for their group health plans (including wellness programs) generally.
And we may not have heard the end of this yet. Two House Democrats on the Education and Workforce Committee — Robert C. “Bobby” Short of Virginia and Frederica S. Wilson of Florida — are pushing back against the EEOC rules. In a joint statement, they said, “We remain steadfast in our belief that the EEOC must ensure employees provide their private health information to these programs voluntarily, and employers must put adequate safeguards in place to protect the private health information of workers who participate. While today’s final rule contains small improvements from the proposed rules, we believe that these changes fall short of achieving these goals.” So, there is an outside possibility we may actually see some congressional action on wellness plans.