Proposed EEOC regs limit employee wellness program incentives

February 2021 employment law letter

Authors:

Lisette Sell, Gregory A. Hendershott, and Matthew Jedreski, Davis Wright Tremaine LLP

The Equal Employment Opportunity Commission (EEOC) recently proposed new rules about the incentives you can provide to employees to participate in wellness programs without violating the law. The key is to ensure the incentive isn't so strong that it renders the program involuntary because the inducement becomes coercive. With one exception relating to certain health-contingent wellness programs, the proposed rules allow you to offer only "de minimis" (or minimal) rewards, such as a water bottle or a gift card of modest value, for participating. Given the significant change in the incentive amount permissible under most wellness programs, you should consider how your program may need to be revised, especially if you're incentivizing employees to obtain COVID-19 vaccinations.

Checkered past

The EEOC's latest proposal, issued on January 7, 2021, flows from a history of regulation and litigation as well as uncertainty about the intersection of wellness programs and antidiscrimination laws, including the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA):

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