EEOC Proposes Final Rules Regarding Incentives for Participating in ‘Voluntary’ Wellness Programs

Arent Fox

Arent Fox

Last week, the Equal Employment Opportunity Commission (the EEOC) proposed two final rules: One under the Americans with Disabilities Act (the ADA), and the other under the Genetic Information Nondiscrimination Act (GINA). 

Each addresses offering incentives to encourage participation in “voluntary” wellness programs. Here’s what you need to know.

In some wellness programs, employers ask employees to disclose information about their medical history, including symptoms, diagnoses, procedures, and outcomes, by completing a health risk assessment and/or undergoing biometric health screenings. Those assessments and screenings, according to the EEOC, are ADA disability-related inquiries and medical examinations. And, pursuing them through a wellness program is unlawful, unless employees participate in the program voluntarily.

Likewise, some employers offer employees’ family members the chance to participate in wellness programs. If an employer collects medical information about an employee’s family members, GINA is implicated because information about the manifestation of diseases and disorders in family members is considered the employee’s “genetic information” under Title II of the statute, which may only be collected voluntarily.

The proposed final rules address an issue that has long vexed employers: How does offering incentives — such as prizes, cash, a reduction or an increase in health care premiums or cost-sharing, or payroll deductions — to encourage participation in a wellness program factor into determining whether participation is voluntary? To be lawful, according to the proposed final rules, such incentives must be very small.

The Proposed Final ADA Rule

The proposed final ADA rule reflects the EEOC’s view that offering a significant incentive is coercive. Thus, the proposed final rule states that, in most wellness programs that include disability-related inquiries and/or medical examinations, participation incentives must be de minimis, such as a water bottle or gift card of modest value. More significant incentives are problematic.

[C]harging an employee $50 per month more for health insurance (or a total of $600 per year) for not completing a health risk assessment as part of a participatory wellness program would not be a de minimis incentive and, therefore, would violate the ADA because the employee would be treated less favorably with respect to the cost of health insurance than employees who chose to provide their health information. Incentives such as paying for an employee’s annual gym membership or rewarding an employee with airline tickets also would not be de minimis.

That de minimis limitation, however, is inapposite to health-contingent wellness programs that are part of, or qualify as, a group health plan. Those programs may offer the maximum allowed incentive under the 2013 HIPAA regulations, currently 30% of the total cost of coverage or 50% for wellness programs aimed at preventing or reducing tobacco use.

The Proposed Final GINA Rule

Consistent with the EEOC’s proposed final ADA rule, the Agency’s proposed final GINA rule states that employers may offer no more than de minimis incentives — such as a water bottle or a gift card of modest value for each participating family member — to an employee whose family member provides to a wellness program information about his or her manifestation of disease or disorder. Unlike the proposed final ADA rule, however, the proposed final GINA rule contains no safe harbor for health-contingent wellness programs that are part of, or qualify as, a group health plan. Also, the proposed final GINA rule doesn’t allow incentives in return for family members providing their own genetic information, including genetic test results. Under GINA Title I, such incentives are considered prohibited “underwriting” based on genetic information.

Interested parties may submit comments regarding the proposed final rules, within 60 days after the Commission publishes them in the Federal Register. Comments, identified by RIN number 3046-AB10 (proposed final ADA rule) and RIN number 3046-AB11 (proposed final GINA rule), may be submitted in any of the following methods:

  • Federal eRulemaking Portal: Follow the instructions for submitting comments.
  • Fax: (202) 663-4114. (There is no toll-free FAX number). Only comments of six or fewer pages will be accepted via FAX transmittal, in order to assure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663–7100 (voice) (this is not a toll-free number) or (800) 669-6820 (TTY) for individuals who are deaf or hearing impaired.
  • Mail: Rachel V. See, Acting Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, US Equal Employment Opportunity Commission, 131 M Street NE., Washington, DC 20507.

Hand Delivery/Courier: Rachel V. See, Acting Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, US Equal Employment Opportunity Commission, 131 M Street NE., Washington, DC

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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