The U.S. Equal Employment Opportunity Commission’s (EEOC) today forwarded to the Federal Register its Notices of Proposed Rulemakings (NPRM) on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The NPRMs have been cleared by the Office of Management and Budget and sent to the Federal Register for publication.
Previously approved by the Commission, the proposed rules address what 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.
The NPRMs respond to a decision by the U.S. District Court for the District of Columbia that vacated a portion of 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 percent 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 NPRMs propose that, in order to comply with the ADA and GINA, employers may offer no more than a de minimis incentive to encourage participation in wellness programs, with the exception of certain wellness programs that would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations.
Unofficial versions of the NPRMs are available here: https://www.eeoc.gov/regulations/wellness-rulemaking. After the Federal Register publishes the proposed rules, the public will have 60 calendar days to submit comments for those comments to be considered by the Commission. Members of the public may submit electronic comments about the proposed rules at www.regulations.gov in the rulemaking dockets RIN 3046-AB10 and RIN 3046-AB11.