As indicated in our last update, the EEOC's wellness regulations governing incentives have been challenged in federal court.
- Two weeks ago, the EEOC requested that the Court remove any requirement from the 12/20/17 order that the EEOC engage in any rulemaking on any schedule. The EEOC argued that it is not required to issue any regulations permitting incentive-based workplace wellness programs, let alone to do so on any particular schedule. The Court granted this request. This will remove the Aug. 31, 2018 deadline for a notice of proposed rulemaking and the requirement that the EEOC file the notice of proposed rulemaking with the Court;
- Consistent with the Court’s earlier order, vacatur of the EEOC rules will be stayed until 1/1/19;
- Consistent with the Court’s earlier order, EEOC will still be required to file a status report no later than 3/30/18;
- The EEOC requested that the Court clarify that it is not retaining jurisdiction over the matter and close the case. The Court denied this request. The Court will retain jurisdiction until 1/1/19. The case will be deemed closed as of 1/2/19.
As to what the EEOC plans to do, the EEOC noted in its motion: “It is possible that the EEOC will elect, as a matter of policy judgment, to promulgate new regulations. The agency may also decide against doing so, however, and leave the regulations as they stand following vacatur. Or the agency might take a wait-and-see approach, choosing to study the issue further or await the resolution of potential appellate proceedings.”
So what does all this mean for Employers and Health Plans who have launched their 2018 program communications outlining requirements for a discount in 2019? That depends on who you ask. Some are suggesting that vacating the rules means wellness incentives are illegal. It’s safe to consider this “fake news”. If, however, the only way to earn an incentive is to complete a biometric screening and/or answer disability-related questions, the employer may be risking some backlash. This is especially true if the wellness program and incentives are being offered outside of a voluntary group health plan where participants are clearly protected by HIPAA and the ACA.
Want to learn more? Join us for a live discussion via webinar on Tuesday, January 30, 2018 at 2:00 EST. Expert panelist including John Hickman and Tami Simon will join me in discussing these and other important questions.
