EEOC Takes First Step to Clarify Wellness Program Regulations

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By Jacquie Lee

The Equal Employment Opportunity Commission has taken its first step toward updating its regulations for wellness programs by proposing amendments to rules that would clarify two nondiscrimination laws.

The agency proposed amending regulations on the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The aim is to clarify how employers can motivate workers to lead healthy lives without forcing them to reveal compromising medical information that could lead to violations of federal laws. The proposal is part of the EEOC’s Fall 2017 Regulatory Agenda.

The commission originally tried to clarify what an employer could and couldn’t do to lower the cost of health coverage in its 2016 wellness program regulations, but that prompted a lawsuit by the AARP.

A judge ruled in August that the EEOC must revamp those rules, which the agency is supposed to do by 2019.

Whether the EEOC will simply strip its 2016 regulations or create new ones to comply with the judge’s orders is up in the air, Christopher Kuczynski, assistant legal counsel for the EEOC’s Office of Legal Counsel, told Bloomberg Law.

“We’re still considering what the options are,” he said. The potential new EEOC chair and commissioner could affect how the agency deals with wellness programs.

“We were specific in what we sent to the court that there were factors involved that may affect the outcome,” he said.

The amendments are in the “proposed rule stage” and will be open to public comment in August 2018. That comment period ends October 2018, and the agency will have to reveal its new regulations by October 2019.

To contact the reporter on this story: Jacquie Lee in Washington at jlee1@bloomberglaw.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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