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EEOC Delays Revised Wellness Incentive Rules

Posted by Barbara J. Zabawa | Jun 03, 2019 | 0 Comments

In its Spring 2019 publication, the Equal Employment Opportunity Commission (EEOC) revised its timetable to issue proposed rules regarding wellness incentives under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  Instead of issuing a proposed rule by June 2019, which is what the EEOC indicated in its Fall 2018 publication, the EEOC is now aiming to release a proposed rule by December 2019.  The Spring Notice indicates that the EEOC is currently developing a Notice of Proposed Rule Making (NPRM) to address wellness programs under both the ADA and GINA.  It looks like the workplace wellness community will need to wait at least another six months before any additional guidance on the use of incentives with health information collection activities is available.  Of course, if/when the proposed rules are issued, the guidance will not be final.  As explained in earlier blog posts, any proposed rules will not become final until after a comment period, as well as consideration of those comments by the EEOC.  Given the six-month delay, we may not now see a final rule until 2021. 

Until new, final rules are issued, the only guidance that workplace wellness program designers have is that any health information collection of employees or employee family members must be part of a “voluntary” wellness program.  See 29 CFR §§ 1630 and 1635.  As mentioned in previous blog posts, what constitutes “voluntary” is not exactly clear.  However, given the reasons behind deleting the incentive limit of 30% of the total cost of self-only coverage from both the ADA and GINA rules back in January 2019, workplace wellness program designers should consider reducing any incentives to under 30% of the total cost of self-only coverage.  Some workplace wellness programs are eliminating the use of incentives; others are continuing to operate under the 30% rule.   

As always, wellness program designers should assess their risk tolerance when planning incentives.  That assessment should include evaluating your employee population and their appetite for wellness program incentives.  The assessment should also include evaluating legal and compliance risks of other aspects of the wellness program to ensure that the entire program operates within the bounds of the law.  Please contact the Center for Health and Wellness Law, LLC to get assistance with that wellness program risk analysis.

About the Author

Barbara J. Zabawa

Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Institute, HPLive, Healthstat University and HERO. Barbara J. Zabawa is a Clinical Assistant Professor for the University of Wisconsin Milwaukee College of Health Sciences, Department of Health Services Administration where she teaches graduate and undergraduate courses in health law and compliance, US health care delivery and health professions career development. Barbara also owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters. She was also a shareholder and Health Law Team Leader at a large Wisconsin law firm. Barbara serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and a compliance resource. Her commitment to improving health and wellness also shows through her community service. Barbara founded the Wellness Compliance Institute, a nonprofit organization that seeks to improve wellness program and activity compliance. She also is a Board Member for the Rogers Memorial Hospital Foundation, a health care organization that specializes in treating mental illness and she chairs the State Bar of Wisconsin Health Law Section. Barbara is licensed to practice law in both Wisconsin and New York.

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