ADA and GINA Rules for Employer Wellness Programs
A wellness program that asks health questions or runs screenings sits under three laws at once. Here is how HIPAA, the ADA and GINA fit together, and what the EEOC has and has not said about incentives.
Three Laws, One Program
A single wellness program can satisfy one of these laws and still fail another.
HIPAA and the ACA Set the Reward Ceiling
For health-contingent programs inside a group health plan, the reward cannot exceed 30% of the cost of employee-only coverage, rising to 50% for programs aimed at tobacco use (29 CFR 2590.702(f)). Participatory programs, where no health standard has to be met, do not count against that limit. Read the HIPAA wellness guide.
The ADA Asks a Different Question
The ADA lets an employer ask health questions or run medical exams only inside a voluntary employee health program that is reasonably designed to promote health or prevent disease. Employees cannot be required to take part, denied coverage, or disciplined for declining, and medical information may reach the employer only in aggregate form. You can test your own figures with our wellness program ROI calculator.
GINA Covers Genetic Information and Family History
GINA Title II bars employers from acquiring genetic information, which includes family medical history, except through voluntary health or genetic services such as a wellness program. A health risk assessment that asks about family history is a common place for this problem to appear.
Why The Tests Differ
HIPAA asks whether a reward is too large for a health-contingent standard. The ADA and GINA ask whether participation is truly voluntary and whether the information is protected. Meeting the first test says nothing about the other two. Because the rules overlap, a program should be reviewed against each one separately, with employment counsel confirming the design before launch.
Who Is Covered
The ADA and GINA apply to the employer as an employer, so they reach a wellness program whether or not it is offered through the health plan. HIPAA reaches it only when it is part of the group health plan.
Carrier Programs Still Need Employer Review
A carrier or vendor may run the program, but the employer decides how it is communicated and whether pay or premium differences are tied to it, so the employer-side rules above still matter. Ask the carrier or vendor how the program is described to employees and what data it collects, and confirm that your own communications match, since the employer remains responsible for how the program is presented.
What Happened to the EEOC Incentive Limits
This is the part of the topic that has changed the most, and the part most often described out of date.
The 2016 Limit Was Vacated
In May 2016 the EEOC finalized rules allowing incentives up to 30% of the cost of employee-only coverage under both the ADA and GINA. After AARP sued, a federal court vacated the incentive sections effective January 1, 2019, and the EEOC removed them from the regulations (Federal Register, December 20, 2018).
No Replacement Is in the Rules
The EEOC proposed new incentive rules in January 2021 and withdrew the proposals in early 2021. The regulations therefore contain no ADA or GINA incentive limit today, and employers are left applying the statutory word voluntary. Because that gap leaves the question unsettled, many employers keep rewards modest and the program clearly optional, and ask counsel to review the design before launch.
Voluntary Still Has Requirements
Only the incentive sections were vacated. EEOC materials still describe the core requirements: no mandatory participation, no denial or limitation of coverage for non-participation, no retaliation or coercion, and a written notice explaining what is collected, who receives it, how it is used and how it is kept confidential.
The Practical Reading
Because the HIPAA ceiling is settled and the ADA and GINA limits are not, a conservative design keeps rewards tied to medical questionnaires and screenings modest and puts larger rewards on participatory activities. That is a design choice to review with employment counsel, not a safe harbor.
A Wellness Program Review Checklist
Six questions to put to any program before it goes in front of employees.
Is Each Track Labeled?
Separate participatory activities from health-contingent ones and apply the 30% and 50% ceilings only where they belong. A short written map of which activities simply require participation and which require hitting a health result makes it much easier to confirm that each track follows the right rules and to explain the program to employees.
Is There a Reasonable Alternative?
Anyone for whom meeting a health standard is unreasonably difficult or medically inadvisable needs another way to earn the full reward. Offer the alternative in plain terms, accept a doctor’s note where appropriate, and make sure the notice tells employees how to ask for it. Employment counsel can confirm what your program requires.
Was the Notice Given?
Hand every eligible employee the written notice before they answer any health question. The notice should explain what information is collected, who receives it, how it is used, and how it is kept confidential, in plain language that employees can read before they decide whether to take part.
Who Sees the Data?
Individual results should stay with the vendor or clinician. The employer should see aggregate reports only. Check the vendor contract and reports to confirm that identifiable results are not passed to managers or HR, and that employees are told this up front, which also builds trust in the program.
Are Family Questions Needed?
Family medical history and spouse questions raise the GINA risk. Ask only what the program needs. If a family question is not needed to run the program, leave it out. Where it is useful, keep it optional, and have counsel review the wording and any related reward before the program launches.
Is Tobacco Handled Separately?
A tobacco program can reach 50% of the cost of coverage but still needs the alternative and notice steps. See wellness incentives and tobacco surcharges guide.
Questions We Get About Wellness Programs
Is there a legal limit on wellness incentives under the ADA?
Not in the current regulations. The EEOC’s 30% limit was vacated effective January 1, 2019 and removed, and the EEOC withdrew its later proposals. The requirement that participation be voluntary still applies.
What is the HIPAA limit?
Rewards in a health-contingent program cannot exceed 30% of the cost of employee-only coverage, or 50% for a program designed to prevent or reduce tobacco use.
Do participatory programs have a limit?
HIPAA places no reward limit on programs that do not depend on meeting a health standard, such as a gym reimbursement. The ADA and GINA voluntary requirements can still apply if the program asks health questions or collects genetic information.
Can we require a biometric screening?
Not as a condition of coverage or employment under the ADA wellness rules. Participation must be voluntary, and employees cannot be denied coverage for declining.
Can we ask about family medical history on a health risk assessment?
Family medical history is genetic information under GINA. It may be collected only through a voluntary program with a proper authorization and confidentiality protections, and many employers choose not to ask at all.
Does the notice requirement still apply?
EEOC materials describe a notice for programs that collect health information. The vacated sections covered incentives only, so the notice and confidentiality provisions remain part of the ADA rule.
Who is responsible when a carrier runs the program?
The carrier designs it, but the employer decides how it is communicated and whether pay or premium differences are tied to it. Ask the carrier how the program handles notice, alternatives and data.
Where do the tobacco rules fit?
Tobacco programs follow the HIPAA ceiling of 50%, and small insured groups also face the 1.5 to 1 tobacco rating factor. Our tobacco guide walks through both.
Is this legal advice?
No. This page is general information, not legal advice. Rules change and facts differ, so confirm your situation with your attorney or tax advisor.
Related Guides
Related reading: HIPAA Wellness Program Rules · Wellness Incentives and Tobacco Surcharges · HIPAA Nondiscrimination · Michigan Employer Benefits Law at a Glance · HR Compliance Audits
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Laws and rules referenced
42 U.S.C. § 12112(d) — Americans with Disabilities Act: limits on employer medical inquiries and exams, including in voluntary wellness programs.
42 U.S.C. § 2000ff-1(b) — Genetic Information Nondiscrimination Act: genetic information may be requested only through voluntary wellness programs.
29 C.F.R. § 2590.702(f) — Wellness program rules; incentive limits of 30% of the cost of coverage, or 50% for tobacco programs, in paragraph (f)(5).
This page is general information, not legal or tax advice. Rules change and facts matter, so confirm your situation with counsel or a qualified advisor.
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