It was with mixed feelings that employers received the U.S. Equal Employment Opportunity Commission’s final regulations governing wellness program compliance under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) last summer. However, AARP’s (American Association of Retired Persons) stance was decidedly negative, as it promptly filed for an injunction against enforcement of the rules. A few days ago, the District Court of D.C. ruled in favor of AARP and issued an order directing the EEOC to reconsider its wellness program regulations.
The Court did not grant the full relief AARP requested, as the regulations remain in effect pending their replacement or justification. However, the Court directed the EEOC (a) to substantiate how a 30% incentive/penalty limitation is appropriate to ensure a wellness program remains “voluntary” and (b) justify its variance from pre-established HIPAA regulations on the same subject. Under the Court’s order, the EEOC is supposed to announce its next steps by the end of September.
For the time being, employers sponsoring wellness programs that include disability-related inquiries or medical examinations or that incentivize spousal disclosures of medical history should continue to comply with the EEOC’s final regulations as issued in the summer of 2016. It could take months (or longer) for the EEOC to issue new regulations and/or provide substantiation for the existing ones. It is also possible we could see legislative action.
In the midst of this uncertainty, one thing is clear - research indicates that wellness programs remain an essential tool for employers to encourage their employees in healthy lifestyles. As we enter the final quarter of the year and begin planning for next year’s programs, it will be important for employers to ensure they continue to inspire employees to make healthy choices without crossing the line into compulsion or discrimination. The future of the EEOC’s wellness regulations may be unclear, but there is still the potential for private action under the law and the EEOC’s regulations are the best gauge we have at this time for compliance.
 For example, H.R. 1313 entitled “Preserving Employee Wellness Programs Act,” which is presently stalled, may find some momentum.
Brenna Davenport is Associate General Counsel for Healthstat. She holds a JD from Campbell University, Norman Adrian Wiggins School of Law. Her legal practice is focused on health law, employee benefits and business law.