Wellness Rule Review to Last Until August 2018, EEOC Says

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By Patrick Dorrian

The EEOC will need until August 2018 to reconsider its regulations on employer wellness programs and expects to issue a new final rule by October 2019, the agency said ( AARP v. EEOC , D.D.C., No. 1:16-cv-2113, status report filed 9/21/17 ).

The Equal Employment Opportunity Commission reported the status of the rule Sept. 21 to the U.S. District Court for the District of Columbia in response to the court’s Aug. 22 ruling that the agency needs to provide additional reasons for adopting portions of the regulations under the Americans with Disabilities Act and the Genetic Nondiscrimination Information Act. These parts of the rule allow companies to provide incentives for employee participation in wellness programs.

The ruling came in a lawsuit filed by AARP challenging whether a wellness program is truly voluntary if workers must choose between receiving a 30 percent decrease in health insurance premiums or providing their family’s personal health information to their employer, as EEOC rules currently provide.

The agency will likely need until August 2018 to reconsider the existing rules so it can receive and evaluate input from employers and other stakeholders, vote on any regulatory actions, and obtain authorization from the Office of Management and Budget to promulgate new regulations, the EEOC said in its status report.

Employers Need Time, EEOC Says

Any substantive changes to the agency’s existing rules on employer wellness programs resulting from the reconsideration and rulemaking likely won’t take effect until January 2021, because employers will need time to bring plans into compliance with those changes, the EEOC added. Timing estimates provided in the report may change based on developments during the course of its reconsideration and rulemaking process, the agency said.

The EEOC’s plans also may change with the arrival of President Donald Trump’s two nominees for seats on the five-member commission, should they be approved.

The status report also asks the court to deny AARP’s pending motion to vacate the existing rules effective Jan. 1, 2018. Instead, the court should keep the existing rules in place next year and direct the agency to again report in April 2018 on the status of its review efforts, the EEOC said.

Prior to issuing its current wellness program rules, the EEOC had taken legal action against several employers, including Honeywell International, alleging that their wellness programs violated the ADA and GINA by requiring workers and their spouses to divulge confidential medical information. Workers were also asked to submit to involuntary medical exams or face substantial monetary penalties, the EEOC said.

AARP and the EEOC Sept. 22 both declined to comment on the status report when contacted by Bloomberg BNA.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

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

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