The Equal Employment Opportunity Commission (EEOC) has formally withdrawn the provisions in its regulations governing wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), which set limits on the amount of incentives for participation in a wellness program. This withdrawal aligns the regulations with a court order that would have vacated the provisions effective January 1, 2019.

In AARP v. EEOC, the U.S. District Court for the District of Columbia found that the EEOC had not adequately justified the limits set forth in the regulations. The remainder of the EEOC guidance on wellness programs under the ADA and GINA continues to be in effect. With the withdrawal of these provisions, employers are left without guidance on the amount that they can set as a wellness program incentive under these two statutes.

The choice to participate in the wellness program and disclose personal medical information needs to be voluntary. The question is, when does the incentive become so large that the decision ceases to be voluntary? Employers that have not already examined their wellness program incentives in view of the court order may wish to review them now, but there is likely more to come on this issue. The EEOC is expected to reconsider wellness incentive limits in the coming year.