Labor & Employment Law I JANUARY 11, 2019

Equal Employment Opportunity Commission Removes Final GINA Wellness Rule

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 program.

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 incentives.

Employers should consult with competent counsel to assure that their wellness programs do not violate the law.