Despite a few extreme views expressed in the trade media, it appears that the US Equal Employment Opportunity Commission (EEOC) has no intention of issuing rulemaking this year following the court-ordered deadline regarding the Wellness Guidelines. Employers are taking a “wait and see” approach.
In August 2017, in AARP v. EEOC, the court ordered the EEOC to reconsider the 30 percent incentive limits it placed on wellness programs under final regulations under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). The court felt that the EEOC did not properly consider whether the 30 percent limit on incentives would ensure the program remained “voluntary” as required by the ADA and GINA and sent the regulations back to the EEOC for reconsideration.
In September 2017, the EEOC filed a status report with the court stating that the EEOC did not intend to issue new proposed regulations until August 2018 (such a proposal has yet to be filed), and moreover, any proposal they published would not be finalized prior to August 2019 with an intent to take effect in 2021.
Unsurprisingly, the courts were not happy about this timeline and in December 2017 ruled to vacate the portions of the final regulations that the EEOC issued last year under the ADA and GINA addressing the 30 percent cap on incentives as it relates to a program’s “voluntariness.” These portions of the rule will be vacated effective Jan. 1, 2019.
Without the EEOC rules, it does not mean that employers can simply rely on the Affordable Care Act (ACA). It means that as of Jan. 1, 2019, the workplace wellness industry will not have a dollar limit by which to measure what incentive level allows a medical exam or inquiry to still qualify as voluntary.
It is possible for a private lawsuit to be brought against an employer for violation of the requirement of voluntary collection of medical information under the ADA or GINA. However, one could argue that the courts should recognize employers functioning in good faith under the ACA and previously shared EEOC — but this is not guaranteed.
Vitality recommends its clients work to measure their risk appetite and engagement goals to select the best incentive plan for their organization and employees. Rest assured, we will continue to closely monitor developments to ensure that our clients continue to be compliant within the existing regulatory environment.