In AARP vs. EEOC, U.S. District Court Judge John D. Bates granted a motion by AARP to vacate the EEOC’s current wellness regulations, which allow companies to charge employees who decline to participate in wellness questionnaires and exams with penalties. The resulting decision is a win for workers seeking to protect their medical and genetic information but also creates uncertainty within the compliance landscape for employer wellness programs.
Background and Decision
A wellness program involving medical exams or inquiries must be voluntary in order to comply with the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). Until this decision, “voluntary” was never defined. There had been almost no limitations, or even judicial or legislative guidance, on allowable penalties or incentives that can be tied to screenings or health reimbursement arrangements (HRAs). The only line was the Affordable Care Act’s 30%-of-total-health-benefit-spending limitation (50% for smokers).
AARP vs. EEOC’s decision means that the Equal Employment Opportunity Commission must rewrite its definition of “voluntary” to achieve consistency with the dictionary definition. Additionally, the EEOC must issue rules soon enough for employers to incorporate the new limits for incentives and penalties into their own wellness programs starting in January 2019. AARP sued the EEOC in October 2016 on the grounds that EEOC’s wellness rules were coercive, making workers pay much more for health insurance if they decided to protect private medical information.
Employer Wellness Programs Face Uncertainty
Under the court’s ruling the EEOC wellness program regulations will remain effective for 2018 but will become null and void beginning on January 1, 2019. As a result, there will likely be an element of uncertainty within the compliance landscape for employer wellness programs under the ADA and GINA beginning in 2019.
As reported, the main types of employer wellness program features impacted by the court’s ruling are:
- Biometric screenings (and any other medical examinations) for employees and spouses;
- Disability-related inquiries directed at employees (which might include some questions on an HRA, depending on how questions are worded);
- Family medical history questions (HRA questions that ask about the manifestation of disease or disorder in an employee’s family member and/or HRA questions that ask an employee’s spouse about his or her own manifestations of disease or disorder); and
- Any other features that involve genetic information (i.e., an employee’s genetic tests, the genetic tests of the employee’s family members, biometric screening results of the employee’s spouse.
You can learn more about the decision here and also sign up for an upcoming webinar to learn about the case, how it effects employers, the wellness industry, and to find additional information.