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EEOC Proposes Changes to Rules for Wellness Program Incentives

The EEOC has proposed new rules addressing the incentives employers may lawfully offer to their employees to encourage participation in wellness programs which require the disclosure of employee medical information without violating the ADA or GINA.

Currently HIPAA, as amended by the Affordable Care Act, allows employers to offer employees incentives of up to 30% of the total cost of health insurance to encourage participation in certain wellness programs.  The ADA, however, requires employee participation in programs that include medical exams or medical inquiries be voluntary.  Since neither the ADA nor GINA define “voluntary”, the new rules proposed by the EEOC provide that in order to comply with the ADA or GINA, employers can offer no more than a “de minimis” incentive to encourage participation in wellness programs, with limited exception.

The EEOC has not yet provided a definition for “de minimis”; however, it does suggest that “a water bottle or a gift card of modest value for each participating family member” would be examples of clearly de minimis incentives.  The proposed new rules come as a direct result of AARP v. EEOC,[1]where the U.S. District Court for the District of Columbia vacated a portion of the EEOC’s previous guidance on incentives for voluntary wellness programs.

The proposed rule changes have been sent to the Federal Register for publication.  Once they are published, the public will have 60 calendar days to submit comments for consideration by the EEOC.  Unofficial versions of the proposed new rules may be found here.

Our labor and employment team will continue to keep employers up to date on pertinent legal changes impacting the workplace and can provide assistance to assure compliance with any new obligations.

[1]  267 F. Supp. 3d 14, 29-34, 38 (D.D.C. 2017)