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Proposed Rules on Wellness Programs Subject to the ADA or GINA

2/23/2021 Update: The proposed rules on wellness programs described below have been withdrawn by the EEOC pursuant to the Biden Administration regulatory freeze. Until further action is taken, the current final rules on wellness programs remain in effect.

The Equal Employment Opportunity Commission (EEOC) released unofficial proposed rules for wellness programs subject to the Americans with Disabilities Act (ADA), referred to as the  proposed ADA wellness rules, and for wellness programs subject to the Genetic Information  Nondiscrimination Act (GINA), referred to as the proposed GINA wellness rules (collectively, the  proposed rules). The term “wellness program” generally refers to health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment. Wellness programs may provide educational health-related information or programs that may include nutrition classes, weight loss and smoking cessation programs, onsite exercise facilities, or coaching to help employees meet health goals. In October 2016, the American Association of Retired Persons challenged  the incentive provisions under the 2016 wellness rules, which were subsequently vacated effective January 1, 2019.

The proposed rules amend the current ADA and GINA wellness program rules, with the most anticipated change being the proposed establishment of the level of incentive (or penalty) that employers may provide under wellness programs. Under the proposed rules, as was the case with the prior wellness rules, the incentives (and penalties) apply in connection with wellness programs that require disclosure of the employee’s or their participating family members’ medical or disability-related information through a medical examination, biometric screen, or a health risk assessment. Currently, the rules for wellness programs that are subject to the ADA or GINA do not provide what level of incentive or penalty may be provided.

Public comments on the proposed rules must be received within 60 days of the proposed rules  being published in the Federal Register.

Incentive Level

The proposed rules provide that wellness programs that use programs such as medical examinations, biometric screenings, or health risk assessments may only provide a de minimis incentive (for example, a water bottle or gift card of modest value) as a reward for the disclosure of information such as medical or disability-related information of the employee (governed by the ADA rules) or the manifestation of disease or disorder of a family member (governed by the GINA rules) provided that family member participates in the wellness program and discloses the information. The proposed rule does not alter the prohibition on providing incentives in return for genetic information (such as family medical history) of an employee unless, as noted above, it is medical information regarding the manifestation of disease or disorder of a family member that is provided by the family member who is participating in the wellness program.

However, under the proposed ADA wellness rules safe harbor, if the wellness program is part of a group health plan or qualifies as a standalone group health plan and requires employees to satisfy a standard related to a health factor (i.e., a health-contingent wellness program), the wellness program incentive limits under HIPAA will apply (30 percent of the total cost of coverage or 50  percent to the extent the wellness program is designed to prevent or reduce tobacco use) provided the wellness program complies with the HIPAA requirements. The safe harbor does not apply if the wellness program is subject to the GINA rules. Participatory wellness programs that  simply collect employee health information through health risk assessments or biometric screenings without tracking results and requiring employees to achieve certain health goals in  order to earn an award must comply with the de minimis incentive level.