Wellness Rules Update Not Happening Until 2019, EEOC Says

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By Jay-Anne B. Casuga

Employers likely will have to wait until at least January for a proposed update to controversial Obama-era rules regarding incentives employers can offer workers who participate in company-sponsored wellness programs.

The proposed rules’ new timetable, which appeared in the spring 2018 regulatory agenda, comes a few weeks after the Equal Employment Opportunity Commission told a federal court in March that it didn’t have plans to issue new rules on wellness incentives by a certain date. The federal anti-discrimination agency told the court that it’s awaiting Senate confirmation of a new Republican chair and commissioner. Once they’re confirmed, Republicans will have a majority on the five-member commission.

AARP had sued to block the commission’s wellness plan rules, which were finalized in 2016. The nonprofit group said that provisions allowing employers to include participation incentives of up to 30 percent of the cost of an employee’s health insurance premiums meant employee participation in those wellness programs wouldn’t be “voluntary.” That voluntariness is required by two laws enforced by the EEOC: the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Employer representatives also opposed the rules, but on different grounds. They argued that the rules contradicted Affordable Care Act regulations by limiting the incentives that employers could offer.

A federal judge in Washington issued an order vacating the rules by Jan. 1, 2019, but also agreed with the EEOC that the agency can set its own schedule on when and whether to revise the rules.

In last fall’s regulatory agenda, the commission targeted August 2018 to release a proposed wellness rule update.

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