The U.S. Equal Employment Opportunity Commission has posted two proposed rules that would significantly limit the incentives employers can offer to employees to participate in many wellness programs.
The proposed rules seek to replace the two final rules struck down (in part) by the U.S. District Court for the District of Columbia in 2017.
Generally, the EEOC proposes:
- Under the Americans with Disabilities Act (ADA): To impose a de minimis incentive limit (such as a water bottle or gift card of modest value) for certain employee wellness programs that include disability-related inquiries and/or medical examinations; and
- Under the Genetic Information Nondiscrimination Act (GINA): Certain employer wellness programs may offer no more than a de minimis incentive (such as a water bottle or gift card of modest value for each participating family member) to an employee in return for the employee’s family members completing a health risk assessment.
Importantly, the proposed ADA rule allows larger incentives for health-contingent wellness programs that are part of the employer’s group health plan (i.e., meets the ADA’s safe harbor provision). The proposed GINA rule also allows larger incentives in certain circumstances.
The proposed rules will have a 60-day comment period and the American Health Policy Institute will submit comments. We will also provide more information on the proposals once we have had the time to thoroughly review them.
Outlook: President-elect Biden has announced he plans to freeze all pending regulations for review before they are implemented, which will delay the rulemaking.
