Regulations put in place by the Equal Employment Opportunity Commission to address employer wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act will be vacated on January 1, 2019.
HRDive reports that the regulations had already been determined by a federal judge not to be properly justified. However, citing the potential for “disruptive consequences” to employers, who need at least six months to design new programs, he opted not to vacate the rules immediately, instead telling the EEOC to come up with new rules.
A new draft, according to the EEOC, will be available in August of 2018; final rules will likely take untill October of 2019. The regulations, says HRDive, were an attempt to clarify the requirement that wellness programs be “voluntary”—in other words, at which specific point a financial incentive to participate makes a program involuntary instead of actually allowing would-be participants a true choice of whether to participate.
A report from the Society for Human Resource Management says that a lawsuit filed by AARP in October of 2016 “challenged the portions of the EEOC’s 2016 workplace wellness regulations under the ADA and GINA that let employers impose greater premiums of up to 30 percent of self-only coverage on employees who refuse to disclose medical and genetic information through wellness programs at work.”
In the existing regulations, the commission sets the limit at 30 percent of the cost of coverage. It has yet to be determined what financial limit the new rulemaking might contain, whether new leadership might change the agency’s direction, and whether the date set by the court might lead EEOC to adjust its timeline.
According to the report, the rules were judged “unlawful” because the EEOC didn’t provide proper justification for them, nor the decision to set the limit at 30 percent. It quotes Ann Caresani, an attorney with Tucker Ellis in Cleveland and Columbus, Ohio, saying, “The EEOC failed to develop any concrete data, studies or analysis to support its conclusion that a 30 percent incentive level made the incentive ‘voluntary’ under the ADA and GINA. It just borrowed the 30 percent level from the Health Insurance Portability and Accountability Act (HIPAA) regulations, where there is no ‘voluntary’ requirement.”
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