EEOC WELLNESS PROGRAM RULES CHANGE

EEOC Wellness Program Rules Change

As the result of a court ruling, the Equal Employment Opportunity Commission (EEOC) has removed parts of the rules issued under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) related to incentives for employee participation in employer-sponsored wellness programs.

In 2016, the EEOC issued rules under the ADA and GINA clarifying the extent to which employers could offer incentives to employees to participate in wellness programs that include questions about the employees’ health, medical examinations or certain genetic information.

Shortly after the rules were published, the American Association of Retired Persons filed a lawsuit challenging the incentive portions of the EEOC rules. Under the rules, employers could offer up to 30% of the cost of single-employee coverage in return for employee participation. The court ruled that the EEOC failed to justify the 30% limit and ordered the EEOC to remove sections of their rules related to the incentive level, effective Jan. 1, 2019. In response to the court’s decision, the EEOC removed the incentive portions of the ADA and GINA rules. The remainder of the EEOC guidance on wellness programs under the ADA and GINA continues in effect.

With the removal of the incentive limits, employers no longer have clear guidance on the extent to which incentives can be offered in connection with wellness programs that include questions about employees’ health, medical examinations or certain requests for genetic information. The ADA and GINA still require that such programs be “voluntary,” but the EEOC has yet to provide further guidance about what incentive amount can meet that requirement.

In light of these changes, employers should carefully review their wellness program design and incentives with their legal counsel to ensure that their workplace wellness program remains compliant.

CoreSource will continue to monitor this issue as the EEOC is expected to reconsider incentive limits this year.