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Judge Vacates Portions of the EEOC’s 2016 Wellness Regulations

By Kelly Holt, CHC  

On December 20, 2017, Judge John D. Bates, a United States District Judge for the District of Columbia, granted the American Association of Retired Persons’ (AARP’s) motion to alter or amend the previous judgment to its 2016 lawsuit.  He ordered that portions of the EEOC’s 2016 Regulations Under the Americans with Disabilities Act and 2016 Regulations Under the Genetic Information Nondiscrimination Act be vacated effective January 1, 2019.  He also ordered that the EEOC’s 2016 regulations be remanded to the agency for further consideration, and to issue new regulations by the end of August 2018.

The judge was dissatisfied specifically with the EEOC’s definition of a voluntary wellness program when a wellness incentive is tied to participation in that program.  The issues being debated are:

  • At what point an incentive is too large for the program to no longer be voluntary?
  • Should there be incentives tied to activities that ask about employees’ medical histories?

The 2016 guidelines provided some long-awaited guidance from the EEOC, defining the incentive amount that would allow programs to comply with ADA and GINA and still remain voluntary.  Judge Bates is now asking the EEOC to provide new regulations with additional justification.

AARP vs. EEOC

The AARP’s original lawsuit in 2016 stated the EEOC did not protect employees from revealing their confidential medical and family health information, for instance in a health risk assessment or medical exam.  After the judgment was made in favor of AARP, the EEOC originally said it would provide additional guidance by August 2018 with final ruling in 2019.  Recently, Judge Bates accelerated that timeline and ordered that the clarification be provided by August 31, 2018.

What does this mean for your wellness program now? 

There is no need to worry quite yet.  Employers will still need to abide by the EEOC’s 2016 regulations along with HIPAA/ACA and myriad other laws.  The EEOC’s regulations are in effect until January 2019.  Judge Bates is giving the EEOC the opportunity to provide clarity and justification to its original regulations.  Wellness incentives have been used and supported for years, and that will likely continue.  It’s important to remember that wellness programs should be designed to provide tools and resources to improve employees’ health, and are not designed to simply cost-shift to employees.

We will keep you updated when additional guidance is provided.  If you have any questions, please do not hesitate to reach out to me for further discussion.

Review the court’s December 20 decision.

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