Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) has officially rescinded its employer-sponsored wellness program regulations under both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), according to rules published in the Federal Register Thursday.
• The wellness regs were already scheduled to sunset next month, more than a year after a federal judge ordered EEOC to reconsider them. The judge declined to void the rules immediately, citing the potential for "disruptive consequences" for employers.
• This latest move was not subject to a public comment period because both fall under the good cause exception of the U.S. Code, according to EEOC. The rescission takes effect Jan. 1, 2019.

Dive Insight:

EEOC has more or less done the expected with its wellness rules after more than a year. The agency originally said it intended to propose new rules in August 2018 and finalize them in October 2019, but it has now pushed back its Notice of Proposed Rulemaking date to June 2019. That change could delay the anticipated 2021 effective date.

The 2017 ruling on the original rules hinged on the agency's decision to cap incentives provided by plans and insurers to wellness program participants at 30% of the cost of coverage. According to the ruling, the 30% threshold would have incentivized workers in a way contrary to the "voluntary" nature of wellness programs.

Aside from the incentives, EEOC's rules specified that, under the ADA, employers were to give notice to participating employees about the information gathered from wellness program participants, who saw that information and for what purpose. Under GINA, the rules specified that incentives would not be tied to questions about a spouse's family history or genetics tests. The latter category of regs also barred altogether from incentives questions about the current or past health status of participants' children.

The EEOC may be further delayed from future rulemaking due to the status of the commission itself. There are currently two open seats with a third set to open when Commissioner Chai Feldblum's term expires at the end of the year. Feldblum, appointed by President Barack Obama in 2010, has been re-nominated to her spot at the agency by President Donald Trump, but a Republican-led Senate may decide to hold up her confirmation process. A delay could leave the agency without a quorum.

Employers will need to keep watch for future developments with respect to wellness programs while ensuring their programs don't conflict with established laws, including GINA and the ADA. Both generally prohibit employers from obtaining and using information about the health of employees and their families, outside of asking questions and completing medical examinations (i.e. biometric screenings) in the context of voluntary wellness programs.