Will the Recent Workplace Wellness Bill Really Undermine Employee Health Privacy?

By Jessica L. Roberts

While the effort to repeal and replace the Affordable Care Act (ACA) has taken center stage, another health-related bill has been making its way through the House without nearly as much attention. On March 2, 2017, Representative Virginia Foxx (R-NC) introduced House Resolution (HR) 1313 on behalf of herself and Representative Tim Walberg (R-MI).   The bill would lift current legal restrictions on access to genetic and other health-related information. Specifically, HR 1313 targets provisions of the Americans with Disabilities Act (ADA) that prohibit employers from conducting unnecessary medical examinations and inquiries that do not relate to job performance; the Genetic Information Nondiscrimination Act’s (GINA) provisions proscribing employers from requesting, requiring or purchasing the genetic information of their employees; and GINA’s prohibition on group health insurance plans acquiring genetic information for underwriting purposes and prior to enrollment. The bill passed through the Committee on Education and the Workforce last Wednesday along strict party lines with 22 Republicans supporting the proposed legislation and 17 Democrats opposing it.

Despite the public outcry against the bill, HR 1313 may not be as far-reaching as it initially appears. First, while advocates of genetic privacy fear the worst, both the ADA and GINA contain exceptions for wellness programs that already allow employers to access at least some employee health data. Second, even if HR 1313 passes, employees would still enjoy the ADA’s and GINA’s antidiscrimination protections.   HR 1313 could well give employers additional access to genetic and other health-related information about their employees but it is not a license to then use that information to discriminate.

Unlike much of the Republican commentary on the ACA, HR 1313 actually commends the legislation, stating that in passing the ACA “Congress has struck an appropriate balance among employees, health care providers, and wellness plan sponsors to protect individual privacy and confidentiality in a wellness program which is designed to improve health outcomes.” Despite their questionable effectiveness, wellness programs have been a key part of health care reform. These initiatives seek to promote health and prevent disease by encouraging employees to adopt healthier lifestyles. Employer-provided wellness programs frequently involve questionnaires related to health—called health risk assessments (HRAs)—and biometric screening, or some combination of the two.

The problem, according to HR 1313, is not the ACA’s employer mandate or coverage requirements, but rather the three statutory provisions that limit access to genetic data and other health-related information for health insurers and employers.  HR 1313 seeks to loosen these constraints to allow more access to employee health data. Before going into further detail regarding the bill and its potential impact, it is worth taking a moment to explain the relatively obscure legal protections that HR 1313 targets and their current effect on wellness programs.

How HR 1313 Would Impact Current Law

Passed in 1990 and amended in 2008, the ADA outlaws discrimination on the basis of disability. Among the ADA’s employment protections is a provision that forbids covered entities, including employers, from requiring medical examinations or asking current employees about disabilities unless the examination or the inquiry is job related and consistent with business necessity. With respect to wellness programs, HRAs may include disability-related inquiries, and biometric screenings could constitute medical examinations.

GINA, enacted in 2008, offers protection against genetic-information discrimination in health insurance and on the job. The statute defines genetic information to include not only genetic tests but also the genetic test results of family members and family medical history. Like the ADA, GINA restricts employer access to certain information. The statute forbids employers from requesting, requiring, or purchasing their employee’s genetic information. Moreover, GINA’s insurance provisions prohibit group health plans from requesting, requiring, or purchasing genetic data for underwriting purposes, as well as from requesting, requiring, or purchasing genetic information prior to enrollment. HRAs that ask for family medical history could then potentially violate GINA, as could wellness programs that involve genetic testing.

Under HR 1313, employers and health insurers could lawfully obtain genetic and other health-related information from employees by simply complying with the ACA’s provisions governing wellness programs, including their limits on incentives and their accompanying regulations. In other words, if employers and health insurers follow the ACA’s requirements for wellness programs, they will not run afoul of these other laws.

The ACA and its regulations offer very specific guidance regarding the kinds of wellness programs employers can lawfully offer their employees. First and foremost, the statute and the regulations distinguished between wellness programs that are participation-based and those that are health-contingent. Participation-based wellness programs either offer employees no rewards or rewards simply for enrolling. If the program is offered to all similarly situated employees, it does not violate the ACA. Examples of these kinds of programs listed in the statute include programs that offer free or discounted gym memberships, provide diagnostic testing (regardless of the result of test), encourage preventative care, support tobacco cessation (regardless of whether the person quits), or offer a reward for attending health education seminars. Employees can reap the benefit of these programs regardless of whether they ever actually adopt the healthy behaviors the programs seek to incentivize. All an employer or health insurer needs to do to comply with the ACA is to make the program available equally. As such, the ACA leaves these kinds of wellness programs largely unregulated.

By contrast, the ACA and its rules regulate health-contingent wellness programs much more closely. A health-contingent wellness program requires employees to hit certain targets—e.g., walk 50,000 steps in a week, lose a certain number of pounds—to access the benefit. Those programs cannot offer incentives that exceed 30% of the cost of coverage (up to 50% for tobacco cessation), must be reasonably designed to promote health or prevent disease, must give employees the chance to obtain the reward at least once a year, must be made available to all similarly situated employees, and must disclose the availability of reasonable alternatives.

In short, HR 1313 would allow access to employee genetic and other health data in the context of wellness programs as long as they meet the ACA’s requirements, regardless of other legal restrictions on obtaining that information.

Additionally, HR 1313 explicitly states that wellness programs fall within the ADA’s insurance safe harbor. A majority of non-elderly Americans hold employer-provided coverage. Because health insurers—particularly pre-ACA—consider health risk, differential treatment in the context of an employer-provided plan, say imposing a pre-existing condition exclusion, might look like discrimination on the basis of disability. Hence, the ADA specifically provides that a benefit plan does not violate the ADA with its lawful underwriting and rating activities. In issuing its regulations interpreting how the ADA applies to wellness programs, the Equal Employment Opportunity Commission (EEOC) explicitly states that wellness programs do not fall within the safe harbor. HR 1313 would reject that regulation and foreclose ADA employment discrimination claims based on adverse treatment within wellness programs. Put simply, conduct in conjunction with a wellness program could not form the basis of a disability discrimination claim under the ADA, should HR 1313 pass.

HR 1313 also provides that wellness programs that treat employees with adverse health factors more favorably and wellness programs that are not offered as part of a health plan also do not violate the same three statutory provisions, provided that the programs comply with the ACA. Notably, for wellness programs that are not part of a health plan, the bill limits the reward that can be offered to the 30% statutory cap imposed on health-contingent wellness programs.

Finally, the proposed legislation would provide that, for wellness program purposes, obtaining family medical history is not an unlawful acquisition of genetic data and, therefore, does not violate GINA. Although Congress passed GINA to make people feel more comfortable taking genetic tests, most valid GINA claims have been for requests for family medical history, not discrimination based on genetic test results. HR 1313 explicitly allows employers and health insurers to collect family medical history when administering wellness programs.

It is worth emphasizing that both the ADA and GINA already have exceptions that allow employers to lawfully obtain genetic and other health-related information for wellness reasons. As written, the ADA allows “voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site.” The EEOC’s final rule on wellness programs and the ADA lists several criteria for evaluating voluntariness: An employer cannot require an employee to participate in a wellness program, deny an employee health insurance for failing to participate, stop an employee from choosing a particular health plan, or take an adverse employment action against an employee who opts out of the wellness program or who fails to meet her health targets. Although employers cannot require their employees to participate in wellness programs, employees can voluntarily provide health information and undergo medical examinations as part of wellness programs. Likewise, GINA includes an exception that allows employers to obtain genetic data from their employees as part of a wellness program, as long as the employee provides prior, knowing, voluntary consent in writing, only the employee and authorized health care providers receive individually identifiable results, and any genetic information given to the employer is de-identified and aggregated. Similarly, the EEOC’s ADA regulations also provide that employers can only acquire de-identified, aggregated health information from the wellness programs.

Open Questions

That is not to say, however, that HR 1313 keeps all of the current protections for employee health privacy intact. The bill leaves several important questions unresolved.

First, what kinds of incentives are available for wellness programs? As noted, the ACA caps the available incentives for health-contingent programs at 30% (50% for tobacco cessation). In addition, the EEOC’s ADA regulations provide that—regardless of whether the wellness program is participation-based or health-contingent—any wellness program that requires employees to respond to disability-related inquiries or to undergo medical examinations is also subject to the 30% cap. And, while GINA’s regulations allow incentives for completing HRAs, they prohibit offering incentives for disclosing genetic information. However, HR 1313 requires only that a wellness program offered in conjunction with a health plan comply with the ACA and its regulations, not the ADA or GINA rules. Imagine then a wellness program that requires family medical history or makes disability-related inquiries but is only participation-based. If the program is available to all similarly situated employees, could it offer hefty incentives in exchange for that information? HR 1313 seems to indicate that the answer may be yes.

Second, can employers actually compel employees to participate in wellness programs that comply with the ACA? Both the ADA and GINA require that employees voluntarily share their health data with a wellness program. While the ACA provides that wellness programs must be offered to all similarly situated employees and that reasonable alternatives for health-contingent programs be disclosed, nothing on the face of the ACA provisions referenced in HR 1313 requires that enrolling in the wellness programs—whether participation-based or health contingent—be voluntary.

Third, what kinds of employee health data can employers lawfully obtain from wellness programs? The ADA regulations and GINA only permit employers to obtain their employees’ information from a wellness program when the data is both de-identified and aggregated. Again, the ACA is silent on this issue, which raises the question whether employers could get access to more kinds of information under HR 1313.

What Protections Will Remain?

But even if HR 1313 becomes law, important protections would remain.   Thankfully, the ADA’s and GINA’s antidiscrimination provisions still apply with full force. Hence, even if employers can lawfully obtain disability-related and genetic information about their employees, the law still prohibits them from using that information to discriminate. (Of course, employees would still have to prove that the adverse employment action was on the basis of disability or genetic information to prevail, which could be a challenge. I have argued in favor of workplace privacy laws to prevent discrimination. Yet post HR 1313, employees may have to rely on antidiscrimination protections alone.) Moreover, while HR 1313 would allow group health plans to collect genetic information, a separate legal protection left untouched by the current bill prohibits group health plans from requesting or requiring genetic testing.   This provision could still limit health insurers’ ability to force people to take genetic tests.

To sum up, HR 1313 is neither a simple strengthening of the ACA’s wellness program provisions nor a wholesale repeal of the ADA’s and GINA’s privacy protections. As the bill progresses, we will hopefully gain more answers about just what HR 1313 means for health insurers, employers, and—most importantly—employees.