Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have been struggling with whether and to what extent they could offer incentives to employees to participate in certain “wellness programs.” The Equal Employment Opportunity Commission’s (EEOC) position on these programs has been a significant driver of those struggles, primarily due to concerns about whether such programs are “voluntary.”

On January 7, the EEOC proposed a new approach that may provide employers some certainty, particularly as many employers are wondering about incentives to encourage employees to receive a COVID-19 vaccine. The agency proposed regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) which, for those interested, provides a brief history of wellness programs, and EEOC’s evolving position concerning same.

A (Very) Brief History

In short, the EEOC stated its position on voluntariness in 2000, in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act: a wellness program is “voluntary” as long as an employer “neither requires participation nor penalizes employees who do not participate.” See Q/A 22.

During that time and moving forward, however, other federal agencies which regulated group health plans (Health and Human Services, Department of Labor, and Internal Revenue Service) provided a regulatory path for employers to incentivize employees to participate in certain wellness programs. A version of those rules were codified in the Affordable Care Act (referred to herein as the “ACA/HIPAA rules”), evidencing Congress’ intent to permit such incentives, albeit subject to other federal laws, such as ADA and GINA. The EEOC’s initial attempt to harmonize by regulation its position on wellness programs with the ACA/HIPAA rules failed when its regulations addressing incentives were judicially vacated. These new proposed regulations take a different approach.

The Proposed Regulations.

The EEOC proposed two sets of regulations – one under the ADA and one under GINA:

ADA.

Under the ADA proposed rule, a wellness program is a program of health promotion or disease prevention that includes disability-related inquiries or medical examinations. Disability-related inquiries, such as health risk assessments and biometric screenings, generally include a series of questions “likely to elicit information about a disability,” while medical examinations are procedures or tests that seek information about an individual’s physical or mental impairments or health. Programs that do not include disability-related inquiries or medical examinations (e.g., rewarding employees for attending a smoking cessation class) would not be subject to the ADA proposed rule. The rule also would incorporate essentially the same subcategories of wellness programs as under the ACA/HIPAA rules – participatory and health contingent.
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