Seyfarth Synopsis: Unpublished U.S. Equal Employment Opportunity Commission (EEOC) proposed regulations regarding incentives offered under wellness programs are set to be withdrawn and reviewed after the Biden White House issues a regulatory freeze.

On January 7, 2021, the EEOC forwarded to the Office of Federal Register its proposed rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) related to wellness programs for publication. The proposed regulations had already been cleared for publication by the Office of Management and Budget (“OMB”). The EEOC also published an unofficial version of the regulations on its website at that time. Seyfarth’s Legal Updates on aspects of the proposed rules, including COVID vaccine implications, can be found here and here.

Before the proposed rules actually were published, however, the Biden White House issued a regulatory freeze. Under the regulatory freeze, it appears that these proposed regulations will be withdrawn from the Office of the Federal Register and set aside for review. The review and approval must be completed by a department or agency head appointed or designated by President Biden (or an approved delegate), unless the OMB director allows publication of the proposed regulations due to some sort of emergency exception.

Whether publication of the EEOC proposed rules will continue to be delayed or whether the rules in their current form will be published at all remains unclear. We look forward to further clarity once the Biden administration informs the public of its intentions for wellness programs generally, and of the fate of the proposed regulations. As explained in our Legal Update, the incentive provisions were removed from the regulations, effective January 1, 2019. Until regulations addressing incentives are published in the Federal Register, employers have little guidance as to the extent to which the new EEOC will allow wellness incentives under the ADA.