Wellness Incentives and the EEOC: What Should Employers Do?
The federal court decision in AARP v. EEOC vacated portions of the final regulations the EEOC issued last year under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), which addressed wellness program incentives for wellness programs that request health information from employees and their spouses.
Under the ADA, wellness programs that involve a disability-related inquiry or a medical examination must be “voluntary.” Similar requirements exist under GINA when there are requests for an employee’s family medical history. For years, the EEOC declined to provide guidance on the level of incentive employers could provide, and it was unclear whether any incentives, such as health insurance premium reductions, could be offered to encourage employee participation in wellness programs subject to ADA and GINA, or whether such incentives would make participation “involuntary.”
The agency eventually released rules on wellness incentives similar to the 30 percent limit established by the U.S. Department of Labor regulations for health-contingent employer-sponsored wellness programs. Last year the court determined the EEOC failed to justify the 30 percent incentive level or ascertain what “voluntary” really meant, but it did not vacate the regulations. In AARP, attorneys asked the court to reconsider its decision and either vacate the regulations or block their enforcement. The court ruled the EEOC’s regulations should be vacated because the agency failed to adequately explain its incentive regulations. It ordered the EEOC to rewrite its definition of “voluntary” to achieve consistency with the definition in the dictionary.
Employers are left wondering what to do as incentives are currently neither permitted nor prohibited. While employers face uncertainty regarding their wellness program incentives, it is important to remember that the court order and the EEOC’s actions only affect the rules regarding an employer’s ability to provide incentives under the ADA and GINA. Other regulations affecting wellness programs remain in full effect.
Wellness Workdays has been designing and implementing wellness programs in Boston and New England for over 15 years. We have worked with numerous employers to develop creative incentive programs that drive engagement. In light of this recent development, employers designing and maintaining wellness programs should carefully consider the level of incentives they use with their wellness programs while continuing to monitor developments, including the issuance of any new wellness program regulations. It is advisable to consult an attorney to ensure your organization's wellness program complies with all applicable laws.