Who knew that wellness regulations could be as exciting as watching a soap opera? Just when you think the future is clear . . . a new twist is presented.
In the summer of 2016, employers thought they had been provided with long-awaited guidance on what a “voluntary” wellness program would mean under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA).
However, just as we were all getting into the swing of our new (and rather complicated) relationship with the contradictory rules, the District Court of D.C. ordered the Equal Employment Opportunity Commission (EEOC) to revisit its final regulations. Yet, at that time, the Court refused to put a complete end to the relationship – in fact, it perpetuated the rules pending EEOC review.
AARP vs. EEOC
The AARP was ultimately dissatisfied with the Court’s order and moved for the District Court to reconsider. Just before the New Year, Judge Bates relented and ordered the EEOC’s 2016 wellness regulations to be vacated (or voided) effective January 1, 2019.
It will be interesting to see how this new order will affect wellness compliance. It could accelerate the EEOC’s timeline (which promised proposed rules by August 2018 and final regulations by October 2019), but, even with an accelerated timeline, it is likely that employers will face a period without regulatory guidance. This is especially likely since the EEOC’s hands are somewhat tied while the President’s nominations for the EEOC’s Commission remain subject to confirmation by the Senate.
It’s possible the EEOC’s timeline could prove irrelevant. H.R. 1313 “Preserving Employee Wellness Programs Act” was recently discharged by several Congressional Committees and recommended for approval by the House of Representatives. If it passes, wellness compliance would largely be defined by the nondiscrimination rules under the Health Insurance Portability and Accountability Act (HIPAA), as modified by the Affordable Care Act, thus rendering the ADA and GINA rules extraneous.
What’s Ahead in 2018
With all three branches of the government simultaneously involved with wellness compliance, 2018 should prove to be a truly exciting year. While we face this time of uncertainly, it’ll be important for employers to follow the rules as and when they exist and consider the persuasive authority of any lapsed regulations.
Regardless of how the rules ultimately resolve themselves, wellness programs remain “an area of tremendous promise for the future of health care and employer-sponsored benefits.”  Uncertainty in wellness compliance is not a new concept, and wellness programs have proven effective even as the rules changed. Healthstat believes in the value of wellness programs and has personally witnessed how our patient-centered wellness and disease management programs and proactive outreach services can increase clinic utilization and bring about significant health improvements.
 None of these developments affect duties imposed by other laws governing wellness compliance, such as the Employee Retirement Income Security Act or HIPAA. Employers should still heed the lessons of Acosta v. Macy’s Inc., S.D. Ohio, No. 1:17-cv-00541 (complaint filed 8/16/17), a case recently brought by the DOL against Macy’s concerning its failure to provide a reasonable alternative standard as part of its tobacco cessation program (among other allegations).
 Legislative Proposals to Improve Health Care Coverage and Provide Lower Costs for Families: Hearing Before the H. Comm. on Educ. and the Workforce, 115th Cong. (2017) (written statement of Allison Klausner, Principal, Government Relations Leader, Conduent Human Resource Services).
Brenna Davenport is Associate General Counsel at Healthstat