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May 23, 2018 | Compliance, Health Improvement, Corporate Wellness & Benefits

Q&A Response from the EEOC Regulations Update Webinar

Thank you to everyone who joined our webinar last month, Update on EEOC Regulations and Best Practices for Comprehensive Wellness Programs. We had a few hundred people on it, and you asked some great questions—some of them we were able to answer on the webinar, and others we weren’t.

We decided to answer the questions together on the video below, because there were many related questions. If you’re looking for your specific question, keep reading below the video for timestamps and consolidated, written responses to your questions.

I know the changing regulatory landscape is confusing and even frustrating to navigate. After nearly ten years in the wellness space, I can assure you this type of regulatory environment is par for the course.  

Think about when the nation was adopting seat belt laws, anti-littering campaigns, laws against smoking in restaurants or public places. The pendulum swings between protecting individual rights, and doing what’s best for the masses. The pendulum is swinging on corporate wellness. We are getting closer and closer to the middle where both sides can live with something that achieves that balance. Hang in there.

At the bottom of the page are additional resources regarding the history of the regulations and guides for your wellness program. Without further ado, here are your questions answered:

 
 
 
 
 
 
 
 
 
 
 
 
 
 

Questions regarding incentives, penalties, and the 30 percent application.


Is reducing the incentive tied to outcomes to 10 or 15 percent rather than 30 percent a viable option?

[1:00-3:29] You may be at lower risk in doing this, but there isn’t a new regulation in place that would, from a legal standpoint, give you immunity from an employee lawsuit.

The National Business Group on Health released study findings that show the average incentive is around $780. Lowering your incentive below 30 percent of premium, or sticking towards the average incentive amount as identified by the NBGH may reduce risk. If you’re going to push the limit on your percentage of premium tied to outcomes, or the total dollar amount of your incentives, you may have employees raising their hands to ask if it’s legal.


What about surcharges or sticks in the program? The 30 percent safe harbor allowed for a surcharge/disincentive, but it feels like the vacate ruling pretty much make it seem like you can only use incentives.

[3:29-5:37] The EEOC didn’t differentiate between reward or penalty. They instead call it a differential, so the difference between the person who did nothing, and the person who did everything is the differential. You can make the penalties look like rewards, and you can make rewards look like penalties. The likelihood of the employee becoming a plaintiff, saying that they felt coerced to participate in a screening or answering disability-related questions, is greater if they perceive a penalty for not engaging versus them choosing to leave a reward on the table.

From a legal standpoint, they are the same. From a practical perspective, I would make sure that employees perceive your program as the ability to earn a reward for healthy choices, behaviors and outcomes.


What is moving to more of an intrinsic mindset rather than extrinsic. How will this work?

[5:42-7:40] We would love to believe that you don’t need any financial incentive at all, and if you have excellent communication and a culture that employees will want to engage and change or improve their lifestyle. It is true for some, but we continue to see that a financial incentive is often the tipping point to get people to take action, and the quality of the program determines what they can accomplish once they start.

Chances are, if you’re only participating in a smoking cessation course to earn a $50/month incentive, you’re not going to quit smoking. But, let’s say the incentive gets you engaged with a well-trained quit coach. The coach is skilled in motivational interviewing and uncovers that the real reason you want to quit smoking is to walk your daughter down the aisle 30 years from now. That’s when extrinsic can transform into intrinsic motivation to quit smoking and create a more lasting behavior change.

 

Questions regarding spouse inclusion & GINA risk


What do you recommend to reduce or mitigate risk when including spouses in your wellness program with incentives?

[7:48-10:31] The definition of genetic relative in the GINA regulations includes spouses. Hmm. You can choose to guide your spousal inclusion by the literal interpretation, or the spirit of what was intended. Including spouses in screenings or letting them complete an HRA technically is collecting health information about a “genetic relative,” by the definition of GINA, so the possibility of a regulator or lawyer raising an argument against you exists. Do I think you’d win that argument? Absolutely. If you don’t want to have to make any arguments? Then I’d say you limit your questions to employee spouses, and to employees about their spouses.


Can we use participation incentives with spouses, but eliminate screening to avoid the GINA issue? What do you recommend?

[10:35-11:24] Absolutely, that should significantly reduce the risk because you’re not collecting health information about the spouse.


Based on the interim EEOC recommended design from Bravo, it’s ok (or low risk) to reward spouses as long as there are participation incentives where they could earn the full incentive without participating in a screening or completing an HRA?

[11:26-12:09] A plan design that allows a spouse to choose how they want to engage in the wellness program and still receive the full incentive does not violate GINA if they were not required to screen or complete an HRA.

 

Questions regarding outcomes- vs. Participation-Based Wellness


Wellness, for us, started at participation-based and we were encouraged to move to performance-based. Are we now being encouraged to go back to participation-based wellness?

[12:18-15:02] When I look at the evolution of wellness programs, in the past, employees typically earned participation-based incentives for activities they could quickly check a box to complete it, and get the incentive with little effort. Although the plan design we recommended includes a “track” for incentives tied to activities, the activities we’re suggesting require effort. They’re not easily gamed.

If you want improvement, reward improvement. The 30 percent safe harbor vacating doesn’t ban outcomes-based wellness. To mitigate any potential EEOC risk in this interim period, you should consider offering someone who is concerned about screening or completing an HRA an incentive contingent on the completion of activities that have a high success rate of resulting in health improvement but are not overly burdensome.


Is the reason for allowing the participation alternative to make your program voluntary?

[15:03-15:43] Yes. If you don’t have to screen to earn the full reward, then the program is voluntary by the ADA standpoint.


If there is a penalty for non-participation, does that present more risk?

[15:45-16:22] See question two above. Legally, it is not more risk whether you call it a reward or a penalty, because in the regulations these are synonymous. But you are more likely to invite criticism of your program if the perception of your incentive is a penalty.


How do you have an outcomes-based program without offering screenings? Do you have to be screened at the doctor’s office instead of onsite services?

[16:23-18:51] You cannot have an outcomes-based program without the ability to measure improvement. If you only offer activities (not including screening) in your wellness program, you won’t be able to measure the outcomes. You can reward outcomes as long as an alternative for participants to reach the full incentive is available and does not require an exam.

Don’t hear what we’re not saying: we believe that screenings are still relevant and you should include them in your wellness program. We find a lot of people who are pre-diabetic, diabetic or hypertensive who didn’t know that they had these conditions. Many people use the screening as the starting point for a conversation with their doctor. But, a screening is still an exam and to be considered voluntary must have an alternative in case someone does not want to screen. An exam is an exam, whether it’s onsite at work, in a doctors office, or in an outside clinic. To make a screening voluntary, there must be an alternative.


Can you incentivize for a doctor’s visit as part of the “list” of things to do for a full incentive?

[19:57-20:57 ] Yes, as long as there is an alternative in case someone chooses not to visit their doctor. A doctor’s visit is still an exam, no matter what you call it. We asked the EEOC, “Can we require someone to review the age/gender preventative screening list with their doctor and close the gap in care?” Their answer was that it is still an exam.

But, the more you’re suggesting people engage in preventative care services, the less likely to have an employee say that my employer coerced me into providing private information. We service over a million participants now and have never had any of these concerns come up, even in a wide variety of plan designs. I think it’s because we work with employers whose hearts are in the right place.


The 2015 FAQs under HIPPA (discussing "reasonably designed" programs indicate in Q&A #1 that “the wellness program regulations are intended to allow experimentation in diverse and innovative ways for promoting wellness.” and reference the Guide to Community Preventive Services or the United States Preventive Services Task Force’s Guide to Clinical Preventive Services as permissible plan design criteria/options (which includes closing gaps in coverage) - is your position that this would be an "exam" leading to some risk despite these FAQs?

[20:58-22:37] Congress intended for wellness programs to be widely adopted – the ACA and HIPPA laws and regulations, and bipartisan support demonstrate that. There must be a balance between preserving innovation, and what the EEOC is intending to regulate – to make sure that discrimination does not exist for people with disabilities. The pendulum of regulations swings between protecting individual rights, and doing what’s best for the masses. The pendulum is swinging on corporate wellness. We are getting closer and closer to the middle where both sides can live with something that achieves that balance. Hang in there.


Additional EEOC Regulation Information and Recommendations:

Topics: Compliance, Health Improvement, Corporate Wellness & Benefits

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