Pension & Benefits News EEOC pulls incentive provisions from ADA, GINA wellness regs vacated by court
Wednesday, January 2, 2019

EEOC pulls incentive provisions from ADA, GINA wellness regs vacated by court

By Pension and Benefits Editorial Staff

The EEOC has removed the incentive portions of the agency’s wellness regulations from its 2016 final rules on wellness programs under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). The agency is taking this action in response to a federal court ruling vacating the incentive section of the ADA and GINA rules effective January 1, 2019.

Incentives and inducements. The EEOC’s wellness rule was published in May 2016. One provision of the ADA wellness regulation offered guidance “on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations.” The GINA 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 (HRA) administered in connection with an employee-sponsored wellness program.”

The wellness rule provided that the use of a penalty or incentive of up to 30 percent of the cost of self-only coverage does not render “involuntary” a wellness program (either participatory or health-contingent) that seeks the disclosure of ADA- or GINA-protected information.

AARP challenges. The AARP filed a legal challenge to the incentive section of the ADA and GINA rules under the Administrative Procedure Act and, on August 22, 2017, the federal court in the District of Columbia, in AARP v. EEOC, held the rules were arbitrary and capricious—the Commission did not provide sufficient reasoning to justify the incentive limit adopted, and it remanded the rule to the EEOC for reconsideration without vacating it, noting that “serious concerns” about the EEOC’s reasoning were outweighed by the “disruptive consequences” likely to result from vacatur.

The AARP then moved to alter or amend the judgment, and the court, determining that the balancing test had shifted in favor of vacatur, issued an order in December 2017 vacating the incentive section of the ADA rule, 29 CFR 1630.14(d)(3), and GINA rule, 29 CFR 1635.8(b)(2)(iii). However, in order to minimize the potential for disruption to employers, it delayed the effective date of the vacatur order until January 1, 2019.

SOURCE: 83 FR 65296, December 20, 2018.

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