Employers may recall that, in the final days of the Trump Administration, the EEOC issued proposed regulations addressing incentives related to wellness programs and their lawfulness under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”).
Under the ADA and GINA, employers are generally permitted to request employee medical or genetic information as part of a “voluntary wellness program.” For years, employers have been seeking guidance from the EEOC as to when such a program is “voluntary.”
Under the Obama Administration, the EEOC attempted to issue regulations providing guidance as to this important issue, but a federal court ruled that portions were invalid, and the EEOC subsequently withdrew the regulations.
In January 2020, employers finally received new proposed regulations, although they were certainly not as “employer friendly” as many employers had hoped. The proposed regulations provided that a wellness program is “voluntary” only if: (1) employees are not required to participate; (2) employees who do not participate in the wellness program generally may not have their coverage limited; (3) the employer cannot retaliate or take adverse action against an employee for refusing to participate; and (4) any incentives offered for participation must be de minimis, i.e., of little value. The EEOC gave, as examples of a de minimis incentive, a water bottle or gift card of modest value.
Many employers were frustrated with these new regulations and their apparent restrictiveness towards allowable employee incentives.
The EEOC has recently withdrawn these proposed regulations as part of the new Biden Administration’s regulatory freeze, issued on January 20, 2021, as confirmed here: https://www.eeoc.gov/regulations/rulemaking#. As a result, the proposed regulations have been withdrawn and employers are back where they were before these new regulations: without any EEOC guidance as to what incentives employers can offer to employees to voluntarily participate in wellness programs.
It is likely that the EEOC will eventually issue new guidance on this issue. Unfortunately, it is very unlikely that guidance will come in time to inform employers any time soon, and particularly during this critical time period when employers are setting up vaccination programs for their employees and could use guidance as to what incentives are permissible.