Last month, we noted that the the Equal Employment Opportunity Commission (EEOC) had released a set of proposed rules (NPRMs) on January 7, 2021 that would amend the incentives employers may offer to encourage participation in wellness programs that require disclosure of medical or genetic information without violating the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).
Next Steps for Employers The withdrawal of these rules provides little guidance in terms of what incentives employers may offer. Currently, this places employers in the same position they have been in since 2018, when the previous rules were withdrawn, which is also a position where there is little regulatory guidance. Employers should carefully consider the level of incentives they use with their wellness programs and confirm with their carrier whether the group health plan safe harbor would be applicable. Employers should also watch for any future developments related to the EEOC’s wellness rules.
However, on February 12 the EEOC announced that it was withdrawing the proposed rules regarding the incentive options employers can provide their employees. Originally, the proposed rules stated that any employer-sponsored wellness programs that include disability or genetic information inquiries or medical exams would be allowed to offer no more than a de minimis incentive, such as a water bottle or a gift card of modest value.