Still Waiting for ADA and GINA Guidance on Wellness Incentives
March is here. The EEOC’s perspective on wellness program incentives is not. Yet again.
In its Fall 2014 regulatory agenda, the EEOC stated it would be issuing in February 2015 amended regulations concerning the size of incentives an employer may offer, yet still have a “voluntary” wellness program under the ADA and GINA. The EEOC listed these same amendments on its Spring 2014 regulatory agenda. The regulatory agenda is a preliminary statement of priorities under consideration and is not a binding commitment to issue the regulations on the stated date.
The EEOC noted on its agenda that these amendments were needed to address whether an employer’s compliance with HIPAA rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), also complies with the ADA. The EEOC added that an amendment would also address the size of inducements allowed under GINA “to employees’ spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments.”
The allowed size of wellness incentives matters to the growing number of employers with wellness programs. The ACA has a clear compliance standard for such incentives. Until 2014, the EEOC had stayed on the sidelines of the wellness incentive debate, not offering any guidance beyond its general view that if the incentive was too large, the program was not “voluntary.”
In 2014, the EEOC sued three employers, claiming the size of their wellness incentives (or penalties, depending on your perspective) transformed otherwise voluntary wellness programs into involuntary programs. In the third case, the EEOC sought to enjoin the company from continuing the incentives in its wellness plan. There was no claim that the incentives violated the ACA standard. Our report on that case is here.
At the oral argument on the injunction hearing, the court asked the EEOC numerous times to define the line between a lawful and unlawful incentive under the ADA and GINA. The EEOC declined to define a specific line. The court denied the EEOC’s injunction request.
More than a year ago, we posted that waiting for the EEOCs guidance on incentives under wellness programs is like waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow. The waiting continues.