Gary Blachman, Audra J. Ferguson-Allen, Robert L. Gauss, Kathleen Sheil Scheidt, Tara Schulstad Sciscoe, Christopher S. Sears, Shalina Ann Schaefer, Austin Anderson, and Melissa Proffitt Reese of Ice Miller LLP write:
On January 7, 2021, the Equal Opportunity Employment Commission (EEOC) released new Proposed Rules on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The Proposed Rules address the level of incentives employers may lawfully offer to encourage employee and spousal participation in wellness programs that require the disclosure of medical information without violating the ADA or GINA. Regulations issued in 2016 under the ADA and GINA that addressed wellness incentives were vacated by the U.S. District Court for the District of Columbia effective January 1, 2019, leaving employers without guidance as to how to ensure compliance with these laws. If finalized in proposed form, the new framework under the ADA Proposed Rule would significantly limit the level of incentives employers can offer employees for participation in several types of wellness programs, and the GINA Proposed Rule would prohibit employers from offering any incentives above a de minimis amount for family member participation in a wellness program when the family member provides his or her own medical information. Given the significant departure from the standards set out under the EEOC’s now-vacated 2016 regulations, employers who sponsor a wellness program that offers incentives for participation will need to assess whether the program meets the requirements under the Proposed Rules and whether they wish to submit comments to the EEOC before the Proposed Rules are finalized.
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