The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.
On March 30, 2018, the EEOC filed its much anticipated update in the AARP v. EEOC case (“AARP case”). The court in that case asked the EEOC to file a status report regarding its plan for the wellness incentive rules under the Americans with Disabilities Act (ADA) and the Genetic Information and Nondiscrimination Act (GINA).
As discussed in previous blog posts, the court in the AARP case vacated the ADA and GINA incentive rules as not meeting the ADA and GINA “voluntary” requirement. The ADA and GINA incentive rules created a safe harbor for workplace wellness incentive amounts at 30% of the total cost of self-only coverage. Those incentive limits applied only to workplace wellness programs that collected employee health or genetic information.
As suspected, the EEOC did not commit to rewriting the ADA and GINA incentive rules. Specifically, the court filing from the EEOC states that the EEOC has not made a final choice from the following policy choices:
- Promulgate new regulations
- Leave the regulations as they stand
- Study the issue further before committing to either of the above options.
It is almost certain that the workplace wellness community will not see any new incentive rules under the ADA or GINA any time this year.
The EEOC revealed that it does not have plans to issue a Notice of Proposed Rulemaking addressing incentives for participation in employee wellness programs by a particular date, but it has not ruled out that possibility either. The EEOC also mentioned that it was still awaiting Senate confirmation of the President’s nominee for Chair of the EEOC – Janet Dhillon – and for one other vacancy. Presumably, these two new commissioners, once appointed to the EEOC, may have some say in the EEOC’s priorities and direction.
Given this information, it is almost certain that the workplace wellness community will not see any new incentive rules under the ADA or GINA any time this year. Thus, the current incentive limits will expire on January 1, 2019 and employers will be left to navigate less certain waters with regard to incentivizing the collection of employee health or genetic information. It will be important for employers to work with legal counsel to navigate these waters and mitigate risk as much as possible.
Barbara J. Zabawa
President of the Center for Health and Wellness Law, LLC wellnesslaw.com
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