EEOC issues revised wellness rules proposal

Employers may soon know the level of incentives they can lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information.

On Jan. 7, the U.S. Equal Employment Opportunity Commission (EEOC) forwarded to the Federal Register its long-awaited Notices of Proposed Rulemakings (NPRM) on wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The NPRMs have been cleared by the Office of Management and Budget and sent to the Federal Register for publication and public comment.

Related: The EEOC isn’t taking action on wellness regulations, but employers certainly can

A statement from the EEOC explains that the NPRMs respond 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. Although the Health Insurance Portability and Accountability Act of 1996 (HIPAA) — as amended by the Patient Protection and Affordable Care Act — allows employers to offer incentives up to 30% of the total cost of health insurance to encourage participation in certain types of wellness programs, the ADA requires that employee participation in a wellness program that includes medical questions and exams be “voluntary.”

Because the ADA and GINA do not define “voluntary,” the NPRM proposes that in order to comply with the acts, employers may offer no more than a “de minimis” incentive to encourage participation in wellness programs. The exception would be for “wellness programs that are part of, or qualify as, group health plans and that require employees to satisfy a standard related to a health factor to receive a reward or avoid a penalty,” according to the proposed rule under the ADA.

Under the GINA regulation, the proposed rule makes an exception that would allow incentives for genetic information “when a wellness program offers an employee an incentive in return for his or her family member providing information about the family member’s manifestation of disease or disorder.”

The NPRMs come more than three years after a federal judge ruled, in part, that the EEOC failed to justify its 30% cap on cost incentives for participating workers. AARP challenged the rule, contending it would allow employers to illegally access private health information and potentially use that data in a discriminatory matter. The organization, which lobbies on behalf of people 50 years and older, also alleged the 30% limit on health care cost incentives was too high of a penalty for nonparticipating workers.

Unofficial versions of the new NPRMs can be accessed here. After the Federal Register publishes the proposed rules, the public will have 60 days to submit comments for consideration by the EEOC. Electronic comments about the proposed rules may be submitted at regulations.gov in the rulemaking dockets RIN 3046-AB10 and RIN 3046-AB11.

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