Insight to Action

Benefits & Healthcare Update: EEOC Issues Rules for Wellness Plans Offering Incentives for Dependent Participation

10 November 2015

On Friday, October 30th, the Equal Employment Opportunity Commission (EEOC) published proposed rules for how wellness programs can provide incentives for spouses to participate without violating the Genetic Information Nondiscrimination Act (GINA). The proposed rules make clear that a wellness plan may offer incentives for a spouse to complete a medical examination, a Health Risk Assessment (HRA), or similar medical questionnaire.

Under the proposed rules, a wellness plan may offer an incentive to an employee whose spouse (1) is covered under the employee's health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status as part of a HRA. As with employees, wellness programs are not allowed to require spouses to provide genetic information about themselves to earn the incentive. If the wellness program wants to collect genetic information about either the employee or the spouse, the program must first receive that individual's written informed consent and provide notice regarding the plan's privacy practices.

Wellness programs may offer a total incentive of up to 30 percent of the annual cost of coverage, including employer- and employee-paid portions, for the plan in which the employee and any dependents are enrolled.

Employers should apportion the incentive such that the maximum share attributable to the employee's participation in an employer wellness program be equal to 30 percent of the cost of self-only coverage. The remainder of the incentive-equal to 30 percent of the total cost of coverage for the plan in which the employee and any dependents are enrolled minus 30 percent of the total cost of self-only coverage-may be provided in exchange for the spouse providing information to an employer wellness program about his or her current or past health status.

  • Example: If an employee is enrolled in a health plan that covers the employee and any class of dependents for which the total cost of coverage is $14,000, the maximum incentive the employer can offer for the employee and the employee's spouse to provide information about their current or past health status is 30 percent of $14,000, or $4,200. If the employer's self-only coverage costs $6,000, the maximum allowable incentive the employer may offer for the employee's participation is 30 percent of $6,000, or $1,800. The rest of the incentive, $4,200 minus $1,800, or $2,400, may be offered for the spouse to provide current or past health status information.
If neither the employee nor the employee's spouse is required to provide current or past health information, a wellness program may offer incentives without regard to the limits on apportionment set forth in the proposed rule, so long as the program complies with the Americans with Disabilities Act (ADA) and GINA.

Wellness programs are prohibited from offering incentives for current or past health information about an employee's children (biological or non-biological). A wellness program may offer health or genetic services to an employee's children on a voluntary basis and may ask questions about a child's current or past health status as a part of providing these services, but there can be no financial inducement to encourage dependent children or their parents to complete the questions.

Finally, the proposed rule prohibits a covered entity from conditioning participation in a wellness program or an incentive on an employee, or the employee's spouse or other covered dependent, agreeing to the sale of genetic information or waiving protections.

The complete text of the proposed rule can be found here:

If you have any questions regarding wellness plans and the myriad of regulations that apply to them, please contact Ed Doherty at 646-839-8251 or via email at