Judge orders EEOC to reconsider wellness rules, grants summary judgment

Dive Brief:

The Equal Employment Opportunity Commission (EEOC) will have to reconsider two components of its regulation of employer-sponsored wellness programs due to a federal judge's decision Tuesday, Law 360 reports.
Judge John D. Bates of the U.S. District Court for the District of Columbia issued a memorandum in AARP v. EEOC (D.D.C. 1:16-cv-02113), siding with the plaintiff's argument that the EEOC did not explain the reasoning behind wellness plan compliance obligations with respect to the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA).
Bates said the EEOC's decision to allow plans and insurers to offer 30% of the cost of coverage as an incentive for joining wellness programs was not sufficiently remedied by the fact that such programs are meant to be voluntary — a crucial point made by AARP. However, the judge said he would not immediately vacate the regulations, according to Law 360, arguing that doing so would lead to "disruptive consequences."

Dive Insight:

EEOC originally finalized new regulations for employer-sponsored wellness programs in May 2016, after a period of seeming conflict between the legal requirements of ADA and GINA and the incentives set forth by the Affordable Care Act (ACA) to encourage the development of such programs.

AARP then sued EEOC over the new rules in October prior to their implementation, seeking a preliminary injunction. The AARP contended that EEOC's latest set of guidelines amounted to coercion, in addition to putting workers at risk of being discriminated against. Bates would later dismiss the call for injunction.

What's most shocking about Bates' latest decision, however, is that it has nothing to do with information privacy and everything to do with the classification of wellness programs as "voluntary." That could shift the conversation entirely moving forward, as the EEOC purposefully set the 30% threshold for exactly that reason.

For the time being, employers and their advocates will be watching the EEOC closely to determine what changes will be made to the regs. It's still advised that compliance officers ensure wellness program incentives don't exceed the 30% mark.