Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) proposed Jan. 7 regulations that set the level of incentives employers may offer to encourage employee participation in wellness programs without violating the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). 
• The ADA requires that medical questions and exams for employee participation in a wellness program be "voluntary," according to the agency. As neither the ADA nor GINA define "voluntary," the NPRMs propose that employers may offer no more than a "de minimis incentive" in order to encourage participation in the programs, except for wellness programs that "would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations," the proposed rule stated. 
• The NPRMs were cleared by the White House's Office of Management and Budget and sent to the Federal Register for publication. The public will have 60 days to provide comments after publication, according to the EEOC.

Dive Insight:

The EEOC's proposed rules follow a ruling by the U.S. District Court for the District of Columbia that vacated earlier regulations on the topic.

AARP sued the agency in 2017, challenging the rule capping incentives provided by plans and insurers to wellness programs participants at 30% of the cost of coverage. The judge ordered EEOC to reconsider its wellness rules, saying the agency did not provide a reasoned explanation for the designated cap percentage and that the limitation would have incentivized workers in a manner contradictory to the "voluntary" nature of wellness programs. The agency rescinded the rules in 2018.

The revised regulations apply to initiatives considered "employee health programs" under Title I of the ADA, according to the guidance. Additionally, GINA is implicated when a wellness program collects medical information from an employee's family members, according to the EEOC.