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This rule amends the regulations to address wellness programs under the Genetic Information Nondiscrimination Act of 2008 (GINA), which had been published as a final rule on May 17, 2016 (81 FR 31143), and completed in the fall 2016 agenda as RIN 3046-AB02.  On August 22, 2017, the U.S. District Court for the District of Columbia ordered the Equal Employment Opportunity Commission (EEOC) to reconsider its May 17, 2016, final rule on employer-sponsored wellness plans under GINA. See AARP v. EEOC, 267 F. Supp. 3d 14 (D.D.C. 2017).  In accordance with the court's ruling, the EEOC rescinded portions of its GINA wellness rule on December 20, 2018 (83 FR 65296). EEOC staff is now developing an NPRM to address wellness programs under GINA in response to the court's ruling. 

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.