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This rule amends the regulations on the Genetic Information Nondiscrimination Act of 2008 to address inducements to employees' spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments (HRA). On August 22, 2017, the U.S. District Court for the District of Columbia ordered the EEOC to reconsider its regulations under GINA related to incentives and employer-sponsored wellness plans.  See AARP v. EEOC, Civ. Action No. 16-2113 (D.D.C. Aug. 22, 2017).  In accordance with the court’s ruling, the EEOC will consider and take actions to cure defects in the rule.  The final rule was published on May 17, 2016 (81 FR 31143) and completed in the fall 2016 agenda as RIN 3046-AB02.

Statement of Need:

The revision to 29 CFR 1635.8 is needed in accordance with the District Court’s ruling noted above.

Summary of the Legal Basis:

GINA, section 211, 42 U.S.C. section 2000ff-10, requires the EEOC to issue regulations implementing title II of the Act. The EEOC issued regulations on November 9, 2010.  In May 2016, the EEOC issued an amendment to the regulations which dealt with the interaction between title II of GINA and wellness programs.  The U.S. District Court for the District of Columbia ordered the EEOC to reconsider these regulations in August 2017.  These new revisions are based on the court order, as well as the statutory requirement.

Alternatives:

The EEOC will consider all alternatives offered by public commenters.

Anticipated Costs and Benefits:

Based on the information currently available, the Commission does not anticipate that the rule will impose additional costs on employers, beyond minimal costs to train human resource professionals. The regulation does not impose any new employer reporting or recordkeeping obligations. We anticipate that the changes will benefit entities covered by title II of GINA by clarifying employers’ obligations under GINA. 

Risks:

The rule imposes no new or additional risks to employers. The rule does not address risks to public safety or the environment.