THE EEOC, ONCE AGAIN, PROPOSES RULES ON WORKPLACE WELLNESS PLANS
Jan 14, 2021
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On January 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) released proposed rules on employer wellness programs under the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act (“GINA”). The EEOC implemented rules on workplace wellness programs in 2015 which were challenged by the AARP, in part, because of the potential for harsh penalties to be imposed on employees who refused to provide medical and genetic information. The court agreed with the AARP and in 2017 struck down the EEOC’s workplace wellness rules. The new rules are a “second run” at employer wellness programs.
Any workplace wellness program must be purely voluntary. According to the EEOC, incentives to participate in the program that are too high would coerce employees into sharing protected medical information, and therefore not qualify as voluntary violating both the ADA and GINA. The proposed rules state that any incentive offered participating employees must be “de minimus”. While de minimus is not specifically defined by the rules, offered as examples are providing employees with a “water bottle” or gift card of “modest value”.
The proposed rules create an exception to the de minimus incentive limitation for health-contingent wellness programs that are part of a group health plan. If a wellness program complies with HIPPA’s non-discrimination requirements for health contingent wellness program, the program may offer the maximum allowed incentive under the HIPPA regulations (currently 30% of the total cost of coverage).
Employers, of course, cannot require employee participation or deny coverage under its group health insurance to employees who chose not to participate. Additionally, in order to maintain confidentiality and the privacy of employee information, the proposed rules provide that any wellness program may only disclose aggregated medical information to the employer.
As of now, the EEOC’s rules are just proposed and subject to a 60-day public comment period. However, employers who offer incentives for workplace wellness programs are advised to keep these proposed rules on their radar.
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