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EEOC Withdraws Proposed Wellness Rules

2021-03-01

The withdrawal leaves employers with little guidance on what incentives may be offered to employees receiving the COVID-19 vaccine

EEOC indicated on February 19, 2021 that it was withdrawing two proposed rules relating to wellness programs.  The proposed rules addressed incentives employers can provide as part of a wellness program without violating the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).   

In January 2021 EEOC forwarded to the Federal Register two Notices of Proposed Rulemaking (NPRMs) and one final rule.  However, since they were not published by President Biden’s inauguration, January 20, 2021, they were withdrawn from the Office of the Federal Register and removed from the EEOC’s website.  They included the following:

  • NPRM – Amendments to Regulations under the Americans with Disabilities Act 
  • NRPM – Amendments to Regulations under the Genetic Information Nondiscrimination Act 
  • Final Rule – Official Time in Federal Sector Cases before the Commission

Under the proposed ADA rule, most wellness programs making disability-related inquiries or requiring medical exams were able to offer no more than de minimis incentives to employees.  Such incentives may include water bottles, gym towels, small value gift cards, etc.  Under the proposed GINA rule, employers may not offer more than de minimis incentives in exchange for employees providing information about their family members’ manifestation of diseases or disorders. 

On February 1, 2021, a coalition of 41 business groups, including the U.S. Chamber of Commerce, sent a letter to the EEOC requesting that it issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without violating the ADAs or other laws.  

In light of the need for the need to encourage employees to get vaccinated, many companies are offering incentives, like paid time off to cash payments.  EEOC has indicated that the agency’s next steps are “under consideration” and until further notice is provided, employers will be struggling with developing an incentive program that complies with the ADA and GINA.

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.