EEOC Withdraws Proposed Wellness Program Incentives

Previously issued in January 2021, the Equal Employment Opportunity Commission (EEOC) has withdrawn two proposed rules regarding wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

Upon President Joe Biden’s inauguration, held on January 20, 2021, the president issued a regulatory freeze memorandum requiring all agencies to immediately withdraw any proposed rules that had not yet been published. Since the proposed rules were not finalized and published before inauguration day, the EEOC announced that the proposed regulations have been withdrawn from the Office of the Federal Register and removed from the EEOC’s website.

Overview

In 2016, the EEOC issued regulations describing 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.

However, a federal court invalidated the incentive provisions in response to a legal challenge, leaving a gap in the wellness program rules.

The proposed regulations would have significantly changed permitted wellness incentives under both the ADA and GINA, allowing only de minimis incentives to be offered for wellness program participation. Exceptions allowing larger incentives would have applied to health-contingent wellness programs that are part of, or qualify as, group health plans under the ADA rules.

The announcement indicates that next steps for the previously proposed rules are “under consideration” by the EEOC, leaving employers uncertain about what incentives, if any, they may offer to employees.

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