In late December, federal courts handed down the decision to vacate the imposed 2016 worksite wellness incentive regulations, effective Jan. 1, 2019, due to lack of action by the Equal Employment Opportunity Commission (EEOC). These headlines may startle and frustrate employers that have recently made sense of the various wellness rules and taken action to remain compliant.
Employers offering workplace wellness programs are likely wondering how this decision will affect them. Most notably, is there potential for employees to take legal action against employers, after 2018, if they feel wellness program incentives, like employee-sponsored health screenings, violate the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA)?
It is important to keep in mind, Affordable Care Act (ACA) and HIPAA wellness rules will still be in place. The EEOC regulations were complex and not entirely consistent with ACA wellness program rules. Although the EEOC regulations offered employers a safe harbor protection under ADA and GINA when incentivizing employees and their dependents to participate in health screenings, ACA and HIPAA guidelines more clearly outline incentive caps and reasonable alternative standard offerings.
- Don’t panic. No need to change your 2018 program, as it must follow all current wellness regulations regardless of the incentive payout date (e.g., earning 2019 incentive for completing 2018 program components). Despite EEOC rules rescinding on Jan. 1, 2019, ACA and HIPAA will still apply.
- Keep program plans and incentive designs reasonable. Carefully designed programs that clearly comply with ACA and HIPAA, as well as the intended spirit of the ADA and GINA, will likely comply with any new regulations.
Overall, employers shouldn’t be overly concerned about this development. Starting in 2019 employers will simply be back in the position they were in prior to 2016, when the EEOC issued its rules, and can rely on the ACA and HIPAA regulations as their guide. Employers were not previously inundated by ADA and GINA lawsuits and often won the challenges that were brought. Employers should continue to ensure their workplace wellness programs are bona fide and not a subterfuge to discriminate on the basis of ADA-protected disabilities or genetic information.