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The EEOC Removes Wellness Program Incentives Limits but Does Not Provide Further Guidance

In a previous post, we discussed the American Association for Retired Persons (AARP) v. EEOC, federal court opinion which vacated portions of the EEOC’s regulations issued under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) addressing wellness program incentives.  The court found that the EEOC had provided inadequate justification for its decision to allow plans and insurers to offer incentives of up to 30% of the cost of self-only coverage in exchange for an employees’ participation in an employer-sponsored wellness program, and still be considered “voluntary”.

In response, the EEOC has deleted language in both the ADA and GINA regulations that speaks to the 30% incentive threshold (sections 29 CFR §1630.14(d)(3) and section 29 CFR §1635.8(b)(2)(iii)). The EEOC did leave all other aspects of these regulations intact, and left the door open for future amendments that may provide some guidance for employers as to the allowable level of incentives v. what renders a program involuntary. For now, however, it is unclear as to what amount of inducement will still meet both the ADA and GINA requirements that participation in a wellness program be voluntary.