EEOC proposes wellness incentive rule

The U.S. Equal Employment Opportunity Commission said Thursday it has forwarded to the Federal Register a proposed rule on incentives for wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

The proposal, which has been approved by the commission, addresses the level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information without violating the ADA or GINA, according to the EEOC’s statement.

The statement says the Health Insurance Portability and Accountability Act of 1993, as amended by the Patient Protection and Affordable Care Act, allows employers to offer incentives of up to 30% of the total cost of health insurance to encourage participation in certain types of wellness programs.

However, the ADA requires that employee participation in a wellness program that includes medical questions and exams be voluntary. Because neither the ADA nor GINA define voluntary, under the proposed rule, employers may offer no more than a “de minimis” incentive to encourage participation in wellness programs, the statement said.

The exception would be certain wellness programs that would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations.

The EEOC said in its statement the proposal was 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.

In its August 2017 ruling, in AARP v. United States Equal Employment Opportunity Commission, the court held the ADA and GINA rules which took effect in July 2016 that defined the incentives employers may use to promote participation in wellness programs were “arbitrary and capricious” and remanded them to the agency for reconsideration.

The public will have 60 days to comment on the proposal.