Removal of ADA Appendix Sections Related to Removal of Final ADA Wellness Rule Vacated by Court

AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Final rule.

SUMMARY:

The Equal Employment Opportunity Commission is issuing a final rule supplementing a final rule it published on December 20, 2018, entitled “Removal of Final ADA Wellness Rule Vacated by Court,” which removed the incentive section in ADA regulations. This rule removes the discussion about the incentive section from the ADA appendix.

DATES:

This final rule is effective as of July 5, 2024.

FOR FURTHER INFORMATION CONTACT:

Sarah DeCosse, Assistant Legal Counsel, (202) 921-3240 (voice); (800) 669-6820 (TTY), Office of Legal Counsel, 131 M Street NE, Washington, DC 20507. Requests for this document in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 921-3191 (voice), (800) 669-6820 (TTY), or (844) 234-5122 (ASL).

SUPPLEMENTARY INFORMATION:

On May 17, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) published a final rule under the authority of title I of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12117, “provid[ing] guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations.” 81 FR 31126 (May 17, 2016). This 2016 rule also discussed the incentive provisions in the ADA appendix.

On October 24, 2016, AARP filed a complaint in the U.S. District Court for the District of Columbia challenging the incentive section of the ADA rule. On August 22, 2017, the District Court concluded that the Commission did not provide sufficient reasoning to justify the incentive limit adopted in the ADA rule and remanded the rule to the EEOC for reconsideration without vacating it. Following a motion by AARP to alter or amend the court's summary judgment order, the court issued an order vacating the incentive section of the rule, which was 29 CFR 1630.14(d)(3), effective January 1, 2019. AARP v. EEOC, No. 16-2113 (D.D.C. December 20, 2017). Consistent with that decision, the EEOC published a final rule entitled “Removal of Final ADA Wellness Rule Vacated by Court” at 83 FR 65296 (December 20, 2018) to remove the incentive section of the ADA rule at 29 CFR 1630.14(d)(3). However, due to an oversight, this 2018 final rule did not remove the corresponding discussion of that section in the appendix to 29 CFR part 1630. The instant final rule serves to supplement 83 FR 65296 (December 20, 2018) and implement the court's ruling by removing the corresponding portions of the appendix to 29 CFR part 1630 in which 29 CFR 1630.14(d)(3) is discussed. Doing so will reflect the revisions to the ADA rule as amended by 83 FR 65296.

Like the 2018 rule, this supplemental rule is not subject to the requirement to provide an opportunity for public comment because it falls under the good cause exception at 5 U.S.C. 553(b)(4)(B). The good cause exception is satisfied when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” Id. Just as the EEOC proceeded directly to a final rule for the original removal of the regulatory incentive text based on the “good cause” exception, here, too, this rule is an administrative measure that corrects an omitted step in 2018 and implements the court's order referenced above. Seeking public comment on this removal also is unnecessary because the Commission is acting to execute the court order.

Finally, because this rule implements a court order already in effect, the Commission has good cause to waive the 30-day effective date under 5 U.S.C. 553(d)(3).

Regulatory Procedures

Executive Order 12866 (as Amended by Executive Order 14094)

The Commission has complied with the principles in section 1(b) of Executive Order 12866, as amended by Executive Order 14094, Regulatory Planning and Review. This rule is not a “significant regulatory action” under section 3(f) of the Executive Order and does not require an assessment of potential costs and benefits under section 6(a)(3) of the Executive Order.

Paperwork Reduction Act

This regulation contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 604, requires a final regulatory flexibility analysis for final rules only “after being required to publish a general notice of proposed rulemaking” or for interpretive internal revenue laws. This rule is being promulgated without a notice of proposed rulemaking for the reasons described above. Further, it does not concern internal revenue matters. Therefore, a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, in 1995 dollars, updated annually for inflation. In 2023, that threshold was approximately $177 million. It will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

List of Subjects in 29 CFR Part 1630

• Equal employment opportunity
• Individuals with disabilities

For the reasons set forth in the preamble, and under the authority of 42 U.S.C. 12116 and 12205a of the Americans with Disabilities Act, the Commission amends 29 CFR part 1630 as follows:

PART 1630—REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT

1. The authority citation for part 1630 continues to read as follows:

Authority: 42 U.S.C. 12116 and 12205a of the Americans with Disabilities Act, as amended.

Appendix to Part 1630 [Amended]

2. Amend the appendix to part 1630, under the heading “Section 1630.14 Medical Examinations and Inquiries Specifically Permitted,” by removing the entries for “Section 1630.14(d)(3): Limitations on Incentives” and “Application of Section 1630.14(d)(3) to Smoking Cessation Programs”.