On January 7, 2021, the Equal Employment Opportunity Commission (EEOC) released two long-awaited proposed rules for health programs under the American Disability Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) . These Notices of Proposed Rules (NPRM) have been cleared by the Office of Management and Budget and sent to the Federal Register for publication and public comment.
Back in October 2016, the American Association of Retired Persons (AARP) sued the EEOC on the grounds that the EEOC's health incentive at the time of 30% was too high a penalty for non-participating workers – and therefore could not be considered "voluntary". In December 2018, a federal judge ruled that the EEOC had failed to justify its 30% ceiling on cost incentives for participating in a health program and, as a result, as of January 1, 2019, left the incentive limit. Since then, employers have been waiting for further guidance on permissible incentive limits.
EEOC's latest proposed health regulations
What has been proposed?
proposed ADA health management introduces a ] "De minimis" incentive limit for most health programs that include disability-related inquiries (eg health risk questionnaires) and / or medical examinations (eg biometrics) screening).
- An employer may not offer more than one "De minimis" incentive (such as a water bottle or a modest gift card) in exchange for an employee participating in the health program.
- There is an exception if the program is a "health contingent health program" (subject to HIPAA rules and incentive limits).
- Example: If the health incentive is conditional on biometric screening results meeting health requirements (such as having cholesterol or BMI within a certain range or improving a certain percentage compared to the previous year's screening), it must still follow ADA as a medical examination but may offer more than one "de minimis" incentive (due to HIPAA rules and incentive limits).
While health care programs have fallen out of popularity over the years, these proposed rules, if approved, suggest that health care providers would need to make changes to ensure EEOC compliance with their health programming. minimis ”incentives for all family members, not just spouses in exchange for family members providing information about their manifestation of illness or disorder.
The proposed rule e also continues to prohibit all incentives associated with employees answering questions about their own genetic information. However, there is a small exception that allows a "de minimis" incentive in exchange for family members (including spouses) who respond to requests for their own manifestation of illness or disorder.
What is de minimis?
The proposed rules are significantly different from the previous rules on health incentive limits. The guide stipulates that a "de minimis" limit only allows nominal incentives such as a water bottle or a gift card of modest value. The proposed rules also state that a medical premium of $ 50 / month, reimbursement of annual gym fees or free airline tickets would not be considered "de minimis." Hopefully further clarification on what will meet the definition of "de minimis" for these purposes will be given in the final rule.
These Notices of Proposed Rules (NPRM) have been approved by the Office of Management and Budget and sent to the Federal Register for publication and public comment. It is important to note that these NPRMs have not been completed and may not be invoked .
Comments on NPRMs expire 60 days after they are published in the Federal Register – which as of the date of this article has not yet occurred. Once the NPRM has been published in the Federal Register, employers who are concerned about how these rules may affect their health programs are encouraged to take advantage of the 60-day public comment period. The public will be able to submit electronic comments on the proposed rules at www.regulations.gov in the regulatory docks RIN 3046-AB10 and RIN 3046-AB11.
With a new presidential administration on the way, it is unclear what impact these proposed rules may have. Republican nominees currently hold a 3-2 edge at the EEOC until at least July 2022. There is some speculation that the new administration may put these new rules on hold until July 2022 or that they may change certain aspects of the final rule. when depending on the comments the EEOC receives. At this time, we do not know what impact this may have on bringing this forward.
R&R will continue to monitor regulatory guidelines and provide meaningful, timely information. We welcome the opportunity to eventually discuss the type of health programs and incentives that best promote good health for your employees and meet the ADA and GINA requirements when completed.
EEOC Proposed Rule for ADA – Proposed Rule – Amendments to Regulations Under the Disabled Americans Act | U.S. Equal Employment Opportunity Commission (eeoc.gov)
EEOC Proposed Rule for GINA – Proposed Rule – Amendments to Regulations under the 2008 Non-Discrimination of Genetic Information Act | US Equal Employment Opportunity Commission (eeoc.gov)