EEOC Provides Timeline for Revising Wellness Regulations

Wellness program sponsors can expect a new rule on wellness incentives—but not until 2019

By Ruth Anne Collins Michels and Taylor Bracewell © Ogletree Deakins Oct 5, 2017
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On Sept. 21, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) filed a status report with the U.S. District Court for the District of Columbia in response to that court's Aug. 22, 2017 ruling against the EEOC's 2016 wellness program regulations.

As a reminder, final EEOC regulations sought to clarify whether participation in a wellness program was "voluntary" under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act of 2008. In the D.C. court case, the American Association of Retired Persons, Inc. (AARP) challenged the EEOC regulations on the basis of the "voluntariness" of the 30 percent incentive limitation.

The court held that the EEOC did not provide a reasonable explanation as to why the incentive limit of 30 percent of the cost of coverage rendered an employee health program voluntary rather than involuntary.

Rather than vacating the EEOC regulations at that time, the court remanded them back to the EEOC for further consideration.

According to the newly issued status report, the EEOC intends to issue a notice of proposed rulemaking by August 2018 and issue a final rule by October 2019.

[SHRM members-only toolkit: Designing and Managing Wellness Programs]

Current Rule Stays in Effect for Now

Notably, the EEOC indicates in a footnote that, in order to give employers time to come into compliance with a new rule, any substantively amended rule on wellness programs would likely not be applicable until the beginning of 2021.

Additionally, the EEOC notes the possibility that, pending the success of any presidential nominations to the commission, its composition may change significantly before any new regulations are issued.

Because the 2016 EEOC regulations still are effective, and, according to the EEOC, employers likely would not need to come into compliance with any new rules this decade, employers can continue operating their wellness programs in accordance with the 2016 EEOC regulations.

Ruth Anne Collins Michels is a shareholder and Taylor Bracewell is an associate in the Atlanta office of Ogletree Deakins. Both attorneys are part of the firm's employee benefits practice. © 2017 Ogletree Deakins. All rights reserved. Reposted with permission. Hyperlinks added by SHRM Online.

Employers Should Share Their Views

Once the Equal Employment Opportunity Commission begins to reconsider wellness program regulations through the rulemaking process, "It will be important for groups representing the interests of self-funded employers to make their perspectives known," Beth M. Cubriel, director at consultancy Michael Best Strategies in Austin, Texas, wrote in a recent blog post.

With new leadership at the Department of Labor and EEOC, "employers can speak up to advise these leaders on why wellness programs are important to employee productivity as well as to controlling health care costs," Cubriel noted. "They can also help them understand how agencies like the EEOC can support employers' efforts to promote employees' health."

--  SHRM Online


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