Employee Wellness Regulations Pushed Back

Employers waiting for an update on controversial wellness regulations from the Equal Employment Opportunity Commission may have to stay on hold a bit longer, according to the agency’s regulatory agenda released Oct. 17.

The wellness regulations were previously slated for a proposed update by January 2019, but the most recent agenda sets a new date of June 2019 (RIN:3046-AB10; RIN:3046-AB11).

The rules, finalized under the Obama administration, define the scope of incentives employers can provide employees for opting in to wellness programs. Those rules on incentives will be vacated on Jan. 1, under a federal judge’s order in a legal challenge to the agency’s rules brought by AARP.

The nonprofit group argued that incentives of up to 30 percent of the cost of an employee’s health insurance premiums meant worker participation in those wellness programs wouldn’t be “voluntary.” That participation be voluntary is required by two laws enforced by the federal civil rights agency: the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Regulatory Holding Pattern

The EEOC has been in a regulatory holding pattern, pending Senate confirmation of nominees for four agency leadership positions. Some GOP lawmakers areblocking current Democratic Commissioner Chai Feldblum’s confirmation for another term, though they are also holding up a Republican majority for the commission.

Janet Dhillon and Daniel Gade—the Republican nominees for EEOC chair and commissioner, respectively—along with general counsel nominee Sharon Fast Gustafson, still can’t take their seats. Commissioner Victoria Lipnic, a Republican, has continued to serve as acting chair.

That makes any clear policy goal noteworthy in a relatively quiet time for new regulations.

Quiet or not, the EEOC still hit the ground running in response to a flood of #MeToo lawsuits filed against employers in fiscal year 2018. The agency increased its number of sexual harassment lawsuits by 50 percent, while harassment charges filed by workers jumped by more than 12 percent. It also collected an additional $23 million from employers in sexual harassment cases, as compared with last year.