Judge Orders EEOC to Reconsider Wellness Rules

(CN) – The Equal Employment Opportunity Commission must reconsider its rules defining the extent employers can go in offering incentives to get staff to participate in wellness programs, a federal judge ruled Tuesday.

In ruling against the federal agency, U.S. District Judge John Bates sided with plaintiff AARP which had argued the EEOC did not adequately explain the reasoning behind its wellness plan compliance obligations as they related to the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

But Bates declined to vacate the regulations, allowing them to stay in place pending the EEOC review because doing otherwise would have “disruptive consequences.”

Under the rules, which were finalized in May 2016, an incentive is permissible if the value does not exceed 30 percent of the cost of self-only health insurance.

The standard is similar to what is permitted under HIPAA non-discrimination rules that were adjusted by the Affordable Care Act.

In a complaint filed shortly after the rule was adopted, AARP said that while the EEOC based its rules on HIPAA and the Affordable Care Act, it erred by impermissibly departing from its longstanding position that “employee wellness programs implicating confidential medical information are voluntary only if employers neither require participation nor penalize employees who choose to keep their medical and genetic information private.”

Bates said the EEOC’s decision to allow plans and insurers to offer 30 percent 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.

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