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  • ACOEM Provides Comments to EEOC Regarding Proposed ADA Amendments

    June 22, 2015

    Bernadette B. Wilson
    Acting Executive Officer
    Executive Secretariat
    U.S. Equal Employment Opportunity Commission
    131 M Street, NE
    Washington, DC 20507

    Re: RIN 3046-AB01

    Dear Ms. Wilson:

    I am writing on behalf of the American College of Occupational and Environmental Medicine (ACOEM) to provide comments on the proposed rule that would amend the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to workplace wellness programs.

    We appreciate the efforts of the Equal Employment Opportunity Commission (EEOC) to provide guidance on the extent to which employers may use incentives to encourage employees to participate in workplace wellness programs. We urge the EEOC to ensure that its regulations are consistent with the current Health Insurance Patient Protection and Portability Act (HIPAA) and Affordable Care Act (ACA) regulations. There are some direct conflicts in the proposal with the HIPAA and ACA regulation. These conflicts are of concern to ACOEM.

    ACOEM is an organization of more than 4,000 occupational physicians and other health care professionals that provides leadership to promote optimal health and safety of workers, workplaces, and environments.

    Occupational physicians are advocates for health system improvements that help employers engage their workforce, improve employee health, and potentially reduce health care and other related costs over time while also protecting employees from discrimination and unaffordable coverage. We believe that the fundamental goal of any wellness program should be to provide opportunities for individuals to improve their health and wellness.

    It makes practical sense for employers to play a positive role in influencing the health behaviors of their workforce. Improvements in employee health can reduce health care costs, disability, and absenteeism, as well as increase employee productivity. Thus, many employers have added wellness programs to their health plans and there is growing evidence for their benefits. Because employers are seeking new ways to increase engagement in wellness programs and, ultimately, influence employees to change health behaviors, interest in outcomes-based incentives has never been higher.

    Some employers, however, report low levels of employee participation in such programs. Studies indicate that financial incentives can increase simple behaviors such as completing a health assessment or preventive screening. Nevertheless, incentives alone may not be a practical tactic for sustained improvements in population health. The evidence suggests that long-term lifestyle modification or risk factor management requires more than financial motivation. The key to a successful worksite wellness program capable of sustaining behavioral change is the creation of a culture and environment that supports health and wellness. Within this context, the role of an extrinsic motivator — like an incentive — is to activate employees to learn about health and wellness and engage in wellness programs.

    To provide guidance regarding appropriate use of outcomes-based incentives as part of a reasonably designed wellness program designed to improve health and lower cost while protecting employees from discrimination and unaffordable coverage, ACOEM collaborated with the Health Enhancement Research Organization (HERO), the American Cancer Society and American Cancer Action Network, the American Diabetes Association and the American Heart Association on a joint statement published in the Journal of Occupational and Environmental Medicine (Volume 54, Number 7, July 2012) for the purpose of informing employers either considering or embarking on providing “health-centric” wellness programs.

    Comments on the Proposed Rule and Interpretive Guidance
    Incentives Permitted:
    As discussed earlier, the purpose of an incentive is to encourage the individual to change health behaviors. Employers have found that employees will participate and engage better in workplace wellness programs and yield better health risk reductions if their spouse/partner are also participating. Incentivizing the spouse/partner for completion of a health risk appraisal is an important step in getting the employee and spouse/partner to become active in their own health improvement.

    The proposed rule, however, limits the incentive to 30% of self-only coverage. By restricting the maximum incentive, the proposed rule eliminates incentives for spousal/partner participation.

    The ACA clearly envisioned that the incentive limitations would apply to the total cost of the coverage in which an employee or individual and any dependents are enrolled.

    “If, in addition to employees or individuals, any class of dependents (such as spouses or spouses and dependent children) may participate fully in the wellness program, such reward shall not exceed 30 percent of the cost of the coverage in which an employee or individual and any dependents are enrolled.” (SEC. 2705, 42 U.S.C. 300gg–4).

    We urge the EEOC to acknowledge that the limitations apply to individual and dependent coverage. Further, we urge the EEOC to clearly state that the incentives for workplace wellness programs include participation by an individual’s spouse/partner. An analysis of medical and prescription drug costs in over 1 million employee/spouse/dependent lives found that spouse and dependents drive as much of the health care expenditures as the employee population. In many instances, over 50% of medical costs are for spouses/partners and dependents.

    Reasonable Accommodation: The Commission requests comments on whether employers that offer incentives to encourage employees to disclose medical information must also offer similar incentives to persons who choose not to disclose such information, but who instead provide certification from a medical professional stating that the employee is under the care of a physician and that any medical risks identified by that physician are under active treatment.

    While ACOEM agrees that with the intent, EEOC needs to provide further clarification on what would constitute certification by a medical professional and what is meant by a “medical risk.” The example included in the Interpretive Guidance raises more questions than it answers.

    “For example, an employer that offers a reward for completing a biometric screening that includes a blood draw would have to provide an alternative test (or certification requirement) so that an employee with a disability that makes drawing blood dangerous can participate and earn the incentive.”

    Also in the proposed Rule, reasonable accommodations must be provided for participatory and health-contingent wellness programs. Under the ACA, reasonable alternatives are required only for health-contingent programs and we urge the EEOC to follow the ACA on this point. Although we do not oppose providing a reasonable alternative to help an employee engage in a participatory program, we urge the EEOC to avoid an unnecessary conflict with the ACA on this point.

    Tobacco Cessation: Under the proposed rule, if an employer conducts a disability-related inquiry or medical examination, the incentive is capped at 30% with regard to tobacco use. However, if a wellness program merely asks if employees use or quit tobacco as a result of the program, then a 50% incentive is permissible. This is not consistent with the regulations issued by the Departments of Health and Human Services (HHS), Labor and the Treasury which increase the maximum permissible reward to 50% for wellness programs designed to prevent or reduce tobacco use, regardless of the type of smoking cessation program. We urge the EEOC to defer to the three Departments on this point.

    Thank you for your consideration of these comments. Please contact Patrick O’Connor, ACOEM’s Director of Government Affairs, if you have additional questions or need additional information. He can be reached at 202-223-6222 or by e-mail at patoconnor@kentoconnor.com.

    Sincerely,

    Mark A. Roberts, MD, PhD, MPH, FACOEM
    President