Chamber Joins EEOC in Defense of Wellness Plan Rules

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By Kevin McGowan

Nov. 25 — The U.S. Chamber of Commerce doesn’t completely agree with the EEOC’s rules that limit the incentives employers can offer their workers for wellness program participation, but it’s urging a federal court to preserve those regulations ( AARP v. EEOC , D.D.C., No. 16-2113, amicus brief filed 11/21/16 ).

The Equal Employment Opportunity Commission’s rules allowing employers to offer some financial incentives are consistent with federal anti-discrimination statutes, the Chamber argued in a brief filed in federal district court in Washington Nov. 21.

The court therefore should deny AARP’s motion for an order that would block the agency’s regulations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, the Chamber said.

The Chamber would have preferred that the EEOC adopt wellness program rules “more in harmony” with existing rules under the Affordable Care Act, which permit greater use of employer incentives, said James Plunkett, the Chamber’s director of labor law policy In Washington.

But the significant point is that wellness programs are valuable for both employers and their workers and incentives that encourage plan participation need to be preserved, Plunkett told Bloomberg BNA Nov. 25.

“The employers’ voice needed to be heard” in the pending lawsuit because neither AARP nor the EEOC is speaking for the business community, he said.

AARP filed a reply brief Nov. 22, saying the EEOC didn’t reasonably interpret the ADA or GINA and its rules therefore violate both the anti-discrimination laws and the Administrative Procedure Act.

The EEOC earlier this month filed its brief opposing AARP’s bid for a preliminary injunction against the rules.

Now that the briefing is completed, the court could rule as early as Nov. 28.

Chamber, EEOC Unlikely Allies

The Chamber and the EEOC are somewhat unlikely allies in seeking to uphold the rules, which are slated to take effect Jan. 1.

“The Chamber believes the EEOC’s regulations are in many ways too restrictive of wellness programs,” the business group said in its brief.

But if the court adopts AARP’s position, employers would be further restricted and the benefits of wellness programs would be threatened, the Chamber said.

The Health Insurance Portability and Accountability Act in most cases would bar disclosure of the private health information AARP is concerned about, the Chamber said.

The EEOC’s rules “not only preserve, but enhance existing protections,” the Chamber said.

EEOC Rules Satisfied Neither Side

The EEOC in May issued a final rule under the ADA and a separate rule under GINA that said employers can offer financial incentives up to 30 percent of an individual’s health insurance costs to encourage employees and their spouses to participate in employer-sponsored wellness programs.

That didn’t satisfy many employer representatives, who said the EEOC’s rules are inconsistent with the Affordable Care Act, which encourages employers to sponsor wellness programs. The ACA and its regulations allow employers to offer greater incentives for employee participation than the EEOC would allow.

The rules also displeased disability rights advocates, including AARP, which said the EEOC rules could enable unlawful job discrimination based on disabilities or genetic information.

The agency’s rules would allow employers to impose significant financial penalties on employees who choose to keep private the medical and family history information that many wellness programs require for participation, those groups said.

AARP in October sued the EEOC, asking the district court to issue a preliminary injunction putting the agency’s rules on hold until the court decides if they violate the ADA, GINA or the Administrative Procedure Act.

Did EEOC Misinterpret ‘Voluntary’?

The Chamber in its brief acknowledged it disagrees with aspects of the EEOC’s rules.

But it said AARP’s argument for halting those rules “not only lacks factual and legal support, but also fails to further the anti-discrimination goals” of the ADA and GINA.

AARP’s view that “all incentives are involuntary” because they inevitably coerce employees into handing over protected personal information is “directly contrary” to Congress’s intent and the “reasoned analysis” by federal agencies enforcing the health-care and anti-discrimination laws, the Chamber said.

Meanwhile, AARP said the EEOC can’t rely on HIPAA, which doesn’t apply to all wellness programs, to evade its responsibilities under the anti-discrimination laws.

“The agency must interpret the ADA and GINA in a manner that independently accords with both laws’ 'voluntary’ requirements and with their core purposes, and it did not do so,” AARP said in its reply brief. “HIPAA does not provide a separate justification for the agency’s actions.”

Judge John D. Bates will decide whether to grant AARP’s motion to put the EEOC’s rules on hold.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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