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Don’t hold your breath for new wellness rules

Court mandating deadline changed its mind

Posted January 29, 2018

Once upon a time, we didn’t have rules regarding how much in incentives we could give to employees who participate in voluntary wellness programs – those that ask for or collect certain health information. Then, in 2016, we did get some rules that indicated that 30% was a good amount of incentives. Then the Equal Employment Opportunity Commission (EEOC) (who wrote the rules) was sued, citing that the 30% made wellness programs involuntary, and the court vacated those rules as of 1/1/19. The court also required the EEOC to published new, proposed rules by August 31, 2018. Then, on January 16, that court changed its mind, and removed the August 31 deadline.

In the latest move, the EEOC objected to the court’s deadline, arguing that the court did not have the authority to make the agency issue new rules at all, much less on a particular timeline. Such determinations are under the jurisdiction of the agency, not the court.

Left in place, however, is the 1/1/19 moratorium on the current rules. On that date, we will again have no rules regarding how much incentives we can apply. Seems we’ve come full circle.

The rules fall under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), which allows wellness programs that ask for health information as long as they are voluntary. No one really defined what made them voluntary, particularly in regard to incentives, so the EEOC settled on 30% of the cost of coverage.

The plaintiff in the lawsuit argued that the 30% was an arbitrary number, and it caused wellness programs to be involuntary, as participants either gave up their health information, or they missed out on (or got dinged) the 30%. The plaintiff argued that there was no supporting evidence that 30% was an appropriate threshold under which wellness programs were voluntary.

So, until 1/1/19, we can still use that 30%, but it might be worthwhile to begin considering what the threshold should be for your particular program as of 1/1/19. Set it too high, and you risk having to change it when final rules finally do get published. Set it too low, and you risk not having enough incentives for employees to participate in your wellness program. Monitoring the developments might be worthwhile.

AARP v. U.S. Equal Employment Opportunity Commission, District Court for the District of Columbia, 1:16-cv-02113, January 16, 2018

This article was written by Darlene M. Clabault of J. J. Keller & Associates, Inc.

LivingRight®: Health & Wellness Awareness ProgramJ. J. Keller's LivingRight®: Health & Wellness Awareness Program offers an easy way to help control healthcare costs and promote employee wellness.


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