By Jean H. Bender and Ryan W. W. Redd, Summer Associate

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On May 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) released its Final Rules, amending regulations governing incentives for participation in employer-sponsored wellness programs under Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondisclosure Act (GINA). The amendments were made in order to harmonize recent changes to the Affordable Care Act with the ADA and GINA. The new rules apply to all workplace wellness programs, including those in which employees or their family may participate without also enrolling in a particular health plan, and will take effect as of the first day of the first plan year that begins on or after January 1, 2017.

1.  Employers will now be able to offer incentives to employees to encourage their participation in employee wellness programs.

Previous ADA regulations were silent as to whether the ADA allowed employers to offer employees incentives to encourage incentives to participate in such programs. Under the Final Rule, Title I of the ADA was amended to clearly allow employers to offer employees incentives of up to 30 percent of the total cost of self-only coverage for their participation in wellness programs that ask questions about employees’ health or include medical examinations.

2.  Employers will now be able to offer incentives attributable to an employees’ spouses’ participation in wellness programs.

Prior to the Final Rule, there was uncertainty as to the whether the GINA allowed employers to offer inducement for employees and their family members to disclose health information or take a medical examination as part of a wellness program. Under the Final Rule, Title II of the GINA was amended to allow employers to offer incentives for employees’ spouses’ to provide health information as part of a voluntary wellness program. The total incentive attributable to a spouse’s participation in a wellness program cannot exceed 30 percent of the total cost of self-only coverage. The change only applies to spouses of employees. Employers are prohibited from using any incentives in exchange for the current or past health status information of employee’s children or in exchange for certain genetic information.

3.  The Final Rule contains safeguard provisions to protect employees’ confidentiality and prohibit discrimination.

In order to ensure the wellness programs actually promote good health, the Final Rule prohibits employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive. In addition, genetic information gathered as part of a wellness program can only be disclosed to employers in aggregated terms.

The existing prohibition in GINA barring the use of genetic information by employers to make employment decisions remains intact, as does the existing provisions of the ADA that prohibit discrimination on the basis of disability.

Employers should review their wellness plans and procedures to ensure they are in compliance with the new rules.

For assistance in reviewing your company’s compliance with these new rules or for general questions regarding the ADA or GINA, contact Jean Bender at [email protected]

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit