If you’re an employer trying to sponsor a wellness program for 2019, then the recent kerfuffle between the AARP and the Equal Employment Opportunity Commission affects you.

The AARP has challenged the EEOC’s wellness program regulations on the grounds that the EEOC’s permissible wellness incentive of up to 30% of the cost of employee-only coverage may result in a wellness program not being voluntary.

As background, HIPAA prohibits discrimination in plan eligibility or premiums based on health-related factors, but has exceptions for certain wellness programs. The ACA expanded those exceptions to allow sponsors to offer incentives of up to 30% for most wellness activities (and up to 50% for quitting smoking).

In addition to HIPAA, the ADA and the GINA also have prohibitions impacting wellness programs: That is, the ADA does not allow discrimination based on a disability, and GINA does not allow a plan to use genetic information to discriminate. So, wellness programs that ask participants to answer health-related questions or undergo medical testing are inherently problematic under these laws.

Accordingly, the EEOC issued regulations under the ADA and GINA to allow such programs under certain circumstances, and limited the permissible incentives to 30% of the cost of employee-only coverage. And the EEOC also added a number of other requirements a plan needs to meet in order to establish that its wellness program is voluntary. (See chart for similarities and differences between the HIPAA-ACA regulations and the EEOC regulations.)

The AARP sued the EEOC for failing to adequately establish that a 30% incentive does not render a wellness program involuntary. The DC District Court agreed and granted summary judgment in favor of the AARP. The court said it would vacate the EEOC’s regulations as of Jan. 1, 2019, told the EEOC to submit a notice of proposed rulemaking by Aug. 31, 2018, and ordered the EEOC to file a status report by March 30, 2018.

Adding to the confusion, the EEOC filed a subsequent motion asking the court not to set a rulemaking deadline. The court agreed, but confirmed that its order vacating the regulations would remain, as would its order requiring the EEOC to file a status report.

On March 30, 2018, the EEOC reported that it had not decided whether to promulgate new regulations. The EEOC blamed its lack of action on having to wait for the Senate confirmations of its new chair and a new commissioner who, as of the writing of this article, have still not been confirmed.

Given this standstill, here are options for designing wellness programs for 2019:

· Safe option: Discontinue wellness programs that require participants to answer health-related questions or undergo medical testing in order to receive an incentive.
· Conservative option: Continue following the EEOC’s regulations (even though they will be vacated January 1, 2019), including incentive limits and the provision of separate wellness program notices.
· Riskier option: Disregard the EEOC’s regulations entirely, and follow only the less restrictive HIPAA regulations (with ACA amendments) that predated the EEOC’s regulations.

Finally, if you don’t already have a wellness program, but were considering adopting one, you might want to postpone it until the 2020 plan year … although, with the way things are going, there’s no guarantee that we’ll have new regulations by then.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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