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EEOC Provides New Wellness Rules for Review

Employers could soon have more clarity on how much they can incentivize employees to participate in their well-being programs.

The United States Equal Employment Opportunity Commission (EEOC) proposed regulations on Jan. 7 that determine the level of incentives employers are allowed to offer their employees without violating the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

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The ADA requires that medical questions and exams for employee participation in a wellness program be “voluntary,” according to the EEOC. However, neither the ADA nor GINA clearly define “voluntary,” thus the Notices of Proposed Rulemakings (NPRM) propose that employers may offer no more than a “de minimis incentive” in order to encourage participation in the programs, except for wellness programs that “would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations,” the proposed rule stated.

The NPRMs are in response to a decision by the U.S. District Court for the District of Columbia that vacated a portion of the EEOC’s previous ADA and GINA regulations. AARP sued the agency in 2017, challenging the rule capping incentives provided by plans and insurers to wellness programs participants at 30% of the cost average.

The judge in the case ordered the EEOC to reconsider its wellness rules, because it did not provide a reasoned explanation for the designated cap percentage and that limitation would have incentivized workers in a way that runs counter to the voluntary nature of wellness programs. The EEOC rescinded the rules in 2018.

The NPRMs were cleared by the White House's Office of Management and Budget and sent to the Federal Register for publication. The public will have 60 days to provide comments after publication.

About the Author

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Brett Christie is the managing editor of Workspan Daily.            


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