On May 16, the U.S. Equal Employment Opportunity Commission (EEOC) released final rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) that address employer-sponsored wellness programs and financial inducements.  The rules specifically limit incentives for participation in programs that involve disability-related inquiries and/or medical examinations or require the disclosure of a spouse’s current or past health status information.

Although the ADA and GINA generally restrict employer access to employee health information, both laws permit employers to use questionnaires or to offer examinations in connection with voluntary wellness programs.  To ensure that participation is voluntary, the new EEOC rules limit incentives, both financial and in-kind, that encourage employees and their spouses to take part in wellness programs. However, the final rules are not completely aligned with Affordable Care Act (ACA) regulations. Some of the incentive percentages allowed under the ACA differ from those permitted under the EEOC final rules. ABC submitted comments on the proposed rules and addressed the agency’s failure to adopt the incentive limits consistent with those established by the ACA.

In addition, the rules specifically prohibit the application of the ADA “safe harbor” to employer wellness programs. The safe harbor provision permits employers, as plan sponsors, to use employees’ medical information to determine the extent and the cost of health insurance coverage; however, employers may not use this provision in wellness programs, even if it is part of the employer’s health plan.

The EEOC rules on incentives and notice will take effect on the first day of the first plan year that begins on or after Jan. 1, 2017.  All other requirements were effective prior to publication of the final regulations and remain enforceable.