By way of background, on May 17, 2016, the EEOC published a
final rule entitled, “Genetic Information Nondiscrimination Act.” The rule addressed the extent to which an
employer may offer an inducement to an employee for the employee’s spouse to
provide his or her current health status information as part of a health risk
assessment administered in connection with an employee-sponsored wellness
AARP filed a complaint in the U.S. District Court
challenging the incentive section of the rule.
One challenge raised by the AARP alleged that the EEOC had
failed to demonstrate how offering employees discounts of up to 30% of their
health coverage (or imposing penalties of up to 30%) would still allow the
wellness programs to truly be considered voluntary. The court concluded that
the EEOC failed to provide sufficient reasoning to justify the incentive limit
adopted in the GINA rule and remanded the rule to the EEOC for further
consideration. The court later issued an order vacating the incentive section
of the rule, effective January 1, 2019. Consistent with that decision, by
regulation, the EEOC removed the incentive section of the GINA regulation.
Despite the rescission of the EEOC’s GINA incentive rule,
there are other wellness program rules that remain in effect, and which have
been the subject of enforcement action. The Affordable Care Act/HIPAA wellness
program rules also remain in effect and contain their own provisions regarding
Employers should consult with competent counsel to assure
that their wellness programs do not violate the law.
Michael R. LiedHoward & Howard Attorneys PLLCOne Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602(309) 999-6311MLied@howardandhoward.com