Employer-Sponsored Health Coverage

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.  Federal law requires that employers cannot ask workers questions about their health or disability status or genetic information except in limited circumstances, including through voluntary workplace wellness programs.

When these laws were first passed, regulations and guidance initially defined “voluntary” to mean a program that neither requires participation nor penalizes individuals for not participating.  In 2016, regulations were amended to define a “voluntary” workplace wellness program to include those that apply penalties for non-participation as large as 30 percent of self-only coverage under the health plan.  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 Federal Equal Employment Opportunity Commission indicated it would revisit this regulation in 2019 but, to date, it has not acted.

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

While we have made every effort to provide accurate information in these FAQs, people should contact the health insurance Marketplace or Medicaid agency in their state for guidance on their specific circumstances.

The Henry J. Kaiser Family Foundation Headquarters: 185 Berry St., Suite 2000, San Francisco, CA 94107 | Phone 650-854-9400
Washington Offices and Barbara Jordan Conference Center: 1330 G Street, NW, Washington, DC 20005 | Phone 202-347-5270

www.kff.org | Email Alerts: kff.org/email | facebook.com/KaiserFamilyFoundation | twitter.com/kff

Filling the need for trusted information on national health issues, the Kaiser Family Foundation is a nonprofit organization based in San Francisco, California.