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Wellness Rules Update Likely on Hold Until EEOC Chair Confirmed

March 30, 2018, 9:50 PM

Companies will have to wait longer for any additional guidance from the U.S. government on the scope of financial incentives they can offer to encourage employees to participate in wellness initiatives.

The Equal Employment Opportunity Commission said March 30 it “does not currently have plans” to issue new rules addressing wellness incentives and is awaiting confirmation of Janet Dhillon to become the new commission chair. There “are a number of policy choices available,” the agency said, but no plans have been made to revise the wellness rules. The agency also wouldn’t rule out the possibility that it may issue updated regulations in the future.

The delay means employers still lack clear guidance on the scope of wellness incentives they can offer to employees without potentially running afoul of federal discrimination and genetic disclosure laws. The current rules will become invalid at the end of this year. Many employers must develop health plans for the next year in time for employees to start enrollment this fall.

The EEOC made the announcement in a March 30 status report filed with the U.S. District Court for the District of Columbia. Judge John D. Bates in January asked the agency to file a report by that date regarding any plans to make changes to its wellness rules, which were first issued in May 2016.

The agency’s rules govern incentives offered by employers to boost employee participation in corporate wellness plans. They allow employers to provide workers incentives of up to 30 percent of the cost of an employee’s health insurance premiums if they volunteer to participate in a wellness plan.

But Bates ruled in August that the agency failed to explain how those financial incentives would make participation truly voluntary under the requirements of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. As a result, Bates ordered those portions of the regulations vacated starting Jan. 1, 2019.

The case is AARP v. EEOC, D.D.C., No. 1:16-cv-02113, defendant’s status report 3/30/18.

To contact the reporters on this story: Terence Hyland in Washington at thyland@bloomberglaw.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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