Q. Are the EEOC’s Wellness Program rules still valid?
A. The ADA and the Genetic Information Nondiscrimination Act both permit an employer to seek medical information as part of a wellness program if the employee participates voluntarily. However, neither statute defines the term “voluntary.”
Effective January 2017, the EEOC issued rules allowing incentives of up to 30 percent of the cost of coverage for employees participating in a health-contingent wellness program, in which the participant receives an award for satisfying a health-related factor. These rules aligned the EEOC’s position with the regulations under the Health Insurance Portability and Accountability Act (HIPAA), such that employers were able to rely on the 30 percent incentive limit to comply with HIPAA, the ADA and GINA.
In October 2016, AARP filed a lawsuit against the EEOC, arguing that the EEOC’s 30 percent incentive rendered wellness programs involuntary because employees would feel coerced to participate in wellness programs and to disclose medical information to avoid losing the benefit of the incentive. The court concluded that the EEOC did not offer a reasoned explanation for its decision to construe the term “voluntary” to permit employers to offer incentives of up to 30 percent for participation in wellness programs.