The Equal Employment Opportunity Commission (EEOC) recently issued final regulations under the American with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) with respect to employer-wellness programs, which took effect on January 1, 2017.  Collectively, with the rules under HIPAA for wellness programs, these rules help establish the legal landscape for employers desiring to design such programs.  The ADA final regulations permit employers to make disability-related inquiries and medical examinations as part of their wellness program as long as the program is reasonably designed to promote health and prevent disease and it satisfies a “voluntary” standard.  To satisfy the ADA voluntary standard, employers are required to comply with a number of requirements, including: (a) no condition requiring employees to participate in the program, (b) no denial of coverage under any group health plan or benefit package for failure to participate, (c) subject to the permitted incentives, no taking of any adverse employment action or retaliation against an employee, and (d) satisfaction of a written notice requirement.  Similarly, the final rules under GINA permit employers to request and collect a spouse’s genetic information only if such information is provided on a voluntary basis, satisfies the mandatory incentive limits, is kept confidential, and prior notice and authorization requirements are satisfied. 

In October, AARP filed a motion to block EEOC’s rules from taking effect, on the basis that the rules are “inconsistent with their statutory purpose” and are “arbitrary and capricious”.   On December 29th, a federal district court in Washington denied the motion to block the new EEOC rules, holding that AARP was not able to show that its members would suffer “irreparable harm” and further noting that AARP was unsuccessful in demonstrating that it will likely succeed in its substantive claims.  As a result, although we can expect to see continued developments in this area, both from a regulatory and a litigation perspective, employers designing and administering wellness programs must continue comply with a myriad of laws, rules and regulations affecting wellness programs, including ADA, HIPAA and GINA and should seek an opinion of advisors and counsel when designing such programs.