We recently blogged about the proposed wellness program rules under the ADA and GINA that were released by the EEOC to provide clarity following the AARP v. EEOC decision that vacated part of the 2016 rules describing incentives employers could offer to employees as part of their wellness programs. Although the proposed rules were posted unofficially on the Commission’s website, they were not published in the Federal Register before the Biden Administration issued a regulatory freeze memo. The memo asked that rules not yet published be withdrawn until the new administration has time to review and approve them. This week, in response to the freeze memo, the EEOC announced that it has withdrawn the proposed rules from the Office of the Federal Register and removed them from the Commission’s website.
We agree that having wellness regulations that provide greater clarity for employers looking to incentivize well-being initiatives would be a good thing. However, we had concerns with the rules as proposed. We hope that the next iteration of guidance from the EEOC will align more closely with well-being best practices and where we’d like to see well-being initiatives heading in the future. We’ll keep our eyes and ears open and report on any new developments. But for now, employer wellness programs with disability-related inquiries and/or medical exams should continue complying with the 2016 EEOC wellness rules (excluding of course the incentive provisions vacated in the AARP case), as well as other applicable federal laws.