The U.S. Equal Employment Opportunity Commission told a federal judge Tuesday it may take a “wait and see” approach to forming new corporate “wellness rules” and that the court does not have the power to force the agency to comply with any deadline, or direct the agency to adopt any new rules in the first place.
The AARP successfully challenged the EEOC’s set of rules that set out guidelines for programs that companies create to give financial or other incentives to employees to embrace healthy lifestyles. Employer wellness programs in many instances require employees to reveal personal health information.
In sending the case back to the agency, U.S. District Judge John Bates set deadlines for action. The EEOC, represented in court by the U.S. Department of Justice, on Tuesday argued against the timeline Bates issued. The Justice Department urged Bates to reconsider the timeline—and let the agency itself craft the next steps.
The action indicates the EEOC is uncertain what direction the new Republican-led commission will take once the Trump administration’s nominees are in place. The U.S. Senate is expected to confirm chair Janet Dhillon, former general counsel for Burlington Stores, and Daniel Gade, a West Point professor and Iraq War veteran. They would join Victoria Lipnic as the Republican majority with Democratic members Charlotte Burrows and Chai Feldblum.
Steven Myers, attorney for the U.S. Department of Justice, wrote in the motion on behalf of the EEOC that “there is no basis for the court to retain jurisdiction over this matter or to require the agency to conduct a new rulemaking on any particular issue.”
The Justice Department and the AARP declined to comment. The EEOC did not immediately respond to request for comment. The AARP told the EEOC it would not oppose its request that Bates reconsider setting deadlines.
Earlier, the EEOC submitted a plan to the court—which was opposed by the AARP—that would see new rules in place by 2021. Bates ultimately disagreed with that timeline and ordered swift action from the agency to formulate new rules.
The AARP’s chief concern was that the rules, deemed unlawful by the court, would remain in place until the agency was able to craft new rules.
“It is possible that the EEOC will elect, as a matter of policy judgment, to promulgate new regulations,” Myers wrote in the court papers filed on Tuesday. “The agency may also decide against doing so, however, and leave the regulations as they stand following vacatur. Or the agency might take a wait-and-see approach, choosing to study the issue further or await the resolution of potential appellate proceedings. Which of these reasonable courses to take is a decision that Congress left for the EEOC.”
Myers argued the agency does not have a legal obligation to conduct further rulemaking, so the court should not retain jurisdiction over the completion of the rulemaking. The EEOC asked Bates to remove any requirement that the EEOC file status reports or engage in any rulemaking on any schedule.
“It would also be permissible for the EEOC to decide never to issue such regulations, or for the EEOC to study the issue for several years before commencing a new rulemaking,” according to the EEOC’s filing.
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