Did you think this question was already answered by the EEOC? So did everyone else except for the U.S. District Court for the District of Columbia. Last week, Judge John Bates ruled in favor of AARP’s challenge to two U.S. Equal Employment Opportunity Commission (EEOC) regulations. He’s pushed back and sent the regulations for reconsideration, asking the EEOC – How did you make up this line of voluntary? Why did you put it there?
To determine what this means for employers and their workforce health promotion programs we must first look back. In wellness, we have always first and foremost relied on HIPAA (Health Insurance Portability and Accountability Act of 1996) legislation that provides data privacy and security provisions for safeguarding medical information. There were also clear standards in place – you can’t force a person to participate. In 2013, that changed and participation was slightly more limited by noting that you can only incentivize OUTCOMES at a maximum of 30 percent of the cost of coverage for an employee’s participation in a health-contingent wellness program and still be considered voluntary. This was thanks to the Affordable Care Act (ACA).
Then, in 2016, the EEOC said let us reconcile the ACA to ensure guidelines for wellness plans comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). They did this by taking the previously accepted 30 percent rule and applying it to ALL participation related to health and/or genetic information. This was viewed as a win for employers and put into action in 2017.
AARP argued against the rule when it was first published, but for a complicated court reason, it was thrown out and the rules become applicable. While AARP has seen success with this latest ruling – the courts have left the rules in place for the meantime as they didn’t want to vacate the EEOC regulation completely as they felt it would be unfair to employers who followed the rule (reasonably so) and built programs for this year.
The bottom line is that the EEOC is now mandated by court order to go back and review and come up with better reasoning for the 30 percent threshold to show that it is still voluntary. AARP says 30 percent is too high, it allows employers too much room and requires employees to divulge personal health information.
What are employers to do?
At this point, we don’t think employers should be too concerned about the future of incentives provided as part of their wellness programs. And the courts have said companies can continue with their programs for 2017. While anything beyond that is uncertain, Vitality is keeping a close eye on the issue and will continue to consult and strategize with its clients to ensure compliance and limit any confusion for our members. And, regardless of the final regulations, Vitality will be in full compliance.
Lauren Chana, General Counsel- maintains her argumentative savvy through continual & vocal support of the Packers and Badgers despite being a Chicago native.