EEOC Website: Rulemaking
Available at https://www.eeoc.gov/regulations/rulemaking
Pursuant to a regulatory freeze memorandum issued on the first day of the Biden administration, the EEOC has withdrawn proposed regulations that would have re-established regulatory limits on wellness program incentives under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). As background, in 2016, the EEOC issued regulations allowing limited incentives (1) under the ADA for voluntary participation in wellness programs involving disability-related inquiries or medical examinations, and (2) under GINA for an employee’s spouse who voluntarily provides information in a health risk assessment about the spouse’s manifestation of a disease or disorder (see our Checkpoint article). However, after a federal court invalidated the incentive provisions in response to a legal challenge, the EEOC removed the invalid provisions from the final regulations effective January 1, 2019 (see our Checkpoint article), leaving a gap in the wellness program rules.
In the closing days of the Trump administration, the EEOC announced that proposed regulations addressing issues raised by the court had been sent to the Federal Register for publication (see our Checkpoint article). The proposed regulations would have significantly changed permitted wellness incentives under both the ADA and GINA. However, before the proposed regulations were published in the Federal Register, the Biden administration issued the regulatory freeze memorandum. The EEOC then announced that the proposed regulations have been withdrawn from the Office of the Federal Register and removed from the EEOC’s website. The announcement indicates that next steps are “under consideration.”
EBIA Comment: It is unclear whether withdrawal of the proposed regulations represents a minor impediment on the path to a final rule or portends a more comprehensive rewrite of the proposal. Any delay in establishing clear wellness criteria under the ADA and GINA is inopportune, as employers focus on wellness programs as part of their strategy to promote healthy workplaces during the COVID-19 pandemic. For example, according to media reports, some employers have announced or are considering paid time off, cash payments, and other financial incentives to encourage employees to receive COVID-19 vaccinations. Guidance on the legal parameters for these incentives would be especially welcome. For more information, see EBIA’s Consumer-Driven Health Care manual at Sections VI.G (“Wellness and Disease-Management Programs: GINA Considerations”) and VI.H (“Wellness and Disease-Management Programs: ADA Considerations), EBIA’s Group Health Plan Mandates manual at Sections XX.F (“ADA Considerations for Wellness Programs”) and XXII.E (“GINA and Wellness Programs”), and EBIA’s HIPAA Portability, Privacy & Security manual at Sections XI.H (“No Discrimination on the Basis of Genetic Information”) and XI.I (“Wellness Programs Must Meet Specific Nondiscrimination Requirements”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.D.3 (“Nondiscrimination Rules’ Interaction With Wellness Programs”) and EBIA’s Health Care Reform manual at Section XIII.C (“Health Status Nondiscrimination and Wellness Programs”).
Contributing Editors: EBIA Staff.
