The U.S. Equal Employment Opportunity Commission (EEOC) recently issued two proposed rules regarding wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA).
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. More specifically, the proposed rules describe the incentives that an employer could offer:
- Under the ADA as part of wellness programs that ask about employees’ health and/or ask them to undergo medical examinations; or
- Under GINA to an employee whose spouse provides information about the spouse’s manifestation of disease or disorder as part of a wellness program.
The proposal was issued in response to a decision made by the federal court that vacated a portion of the EEOC’s previous ADA and GINA regulations. Although the Health Insurance Portability and Accountability Act (HIPAA) 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.”
After the Federal Register publishes the proposed rules, the public will have 60 calendar days to submit comments to be considered by the Commission. Members of the public may submit electronic comments in response to the proposed rules at www.regulations.gov. Employers should keep in mind that the proposed rules should not be relied upon until final comments are considered.
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