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EEOC proposes rule on health incentives



The US Equal Employment Opportunity Commission said Thursday that it has forwarded to the Federal Register a proposed rule on incentives for health programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

The proposal, which has been approved by the Commission, addresses the level of incentives that employers can legally offer to encourage employee participation in health programs that require disclosure of medical information without violating ADA or GINA, according to the EEOC statement.

The statement states that the Health Insurance Portability and Liability Act of 1993, as amended by the Patient Protection and Affordable Care Act, allows employers to offer incentives of up to 30% of the total cost of health insurance to encourage participation in certain types of health programs.

However, the ADA requires that employee participation in a health program that includes medical issues and examinations be voluntary. Because neither ADA nor GINA defines voluntarily, according to the proposed rule, employers can offer more than one "de minimis" incentive to encourage participation in health programs, the statement said.

The exception would be certain health programs that would be allowed to offer the maximum allowable incentive under the HIPAA rules 201

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The EEOC said in its statement that the proposal was in response to a decision of the U.S. District Court for the District of Columbia leaving part of EEOC's previous ADA and GINA regulations.

In its decision in August 2017, in AARP v United States Commission on Gender Equality the Court upheld the ADA and GINA rules, which entered into force in July 2016, defining the incentives employers may use to promote participation in health programs were "arbitrary and capricious" and returned them to the authority for reconsideration.

The public has 60 days to comment on the proposal l.

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