December 21, 2018

EEOC Removes Affected Provisions of Wellness Incentive Rules from CFR

As previously reported, in 2017, a U.S. federal district court issued an order vacating the wellness plan incentive rules imposed under the Americans With Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  The court’s order is effective on January 1, 2019.  Consistent with that ruling, the EEOC has officially removed the affected provisions of the wellness incentive rules from the Code of Federal Regulations as of that date.  This is largely a formality.

Employers who sponsor wellness programs should take note of the following.

  • The court’s ruling and this action by the EEOC has no effect on the wellness rules applicable under HIPAA.
  • The statutory principles underlying the ADA and GINA remain in effect.
  • Accordingly, health plans still may not collect genetic information for any reason prior to enrollment and may never request or require genetic information for underwriting purposes.   This includes typical plan-based incentives under wellness programs.
  • Similarly, under the ADA, an employer may not conduct a a medical exam (such as a wellness screening) or make inquiries (such as a health risk assessment) in connection with a wellness program unless it is voluntary.  Employers will now need to make judgment calls on the extent to which the availability of an incentive or the assessment of a penalty renders their programs effectively involuntary.
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