On December 20, 2017, the United States District Court for the District of Columbia issued an order amending its earlier judgment in a lawsuit brought by the American Association of Retired Persons (AARP) against the Equal Employment Opportunity Commission (EEOC). The order vacates the EEOC regulations that limit wellness incentives under the Genetic Information Non-Discrimination Act (GINA) and the Americans with Disabilities Act (ADA), but it delays the order’s effective date until January 1, 2019.
The EEOC wellness rules issued in 2016 were met with resistance because they conflicted with existing guidance under the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA). Generally speaking, the EEOC rules require a stricter (lower) dollar value limit for wellness incentives. (See our article – EEOC Issues Wellness Program Final Rules Under ADA and GINA – for a detailed analysis on these rules.)
In its 2016 lawsuit, AARP asserted that the EEOC had failed to adequately protect workers who may not want to disclose sensitive information by permitting employers to offer health insurance premium incentives or penalties for wellness program participation. The District Court ruled in favor of AARP, and ordered the EEOC to reevaluate its rules. In late 2017, the EEOC indicated that new proposed regulations would be issued by August 2018, and final rules by October 2019. The final rules would be applicable in January 2021, at the earliest. This December 20 ruling overturning the regulations will likely speed up the EEOC’s calendar for issuing the proposed and final regulations.
At this time, employers may wish to begin reviewing their incentives to determine whether any changes to incentives put in place to comply with EEOC rules should be modified for 2019. There will be more to analyze and consider as the EEOC is now likely to revise regulations sooner than expected.
If you have any questions about this article, please contact the Findley consultant with whom you normally work.Findley Perspective, Health and Group Benefits