A federal court in Washington, D.C. has declined to issue an order that would have halted implementation of the EEOC’s wellness plan regulations under the ADA and GINA. The regulations had been challenged by AARP on the grounds that they failed to adequately protect workers’ rights. However, the court concluded there was no risk of "irreparable harm" to workers in allowing the regulations to remain on the books. This means the regulations remain in force and will apply as scheduled.
The EEOC’s regulations are generally applicable to wellness programs beginning with the 2017 plan year. The regulations limit the incentives that employers may offer in connection with a wellness program that involves a medical examination or disability-related inquiry. Most wellness programs that involve a health risk assessment or biometric screening are covered. The incentive cannot exceed 30% of the cost of employee-only coverage under the related health plan -- or twice that amount in the case of plans that offer incentives to both employees and their spouses.The regulations also impose notice and confidentiality requirements, in addition to limiting the amount of incentives.
The EEOC’s rules apply in addition to other wellness plan rules under HIPAA and the ACA, with sometimes inconsistent results. For example:
- Under the HIPAA and ACA regulations, there is no limit on the amount of the incentive that can be offered in a “participation only” wellness program involving completion of a health risk assessment and biometric screening, but the same wellness program generally is subject to the 30% limit under the EEOC’s regulations.
- A wellness program that offers an incentive to employees who certify they are tobacco-free but does not require them to undergo any medical test or screening to prove they are tobacco-free generally is subject to limitations under the HIPAA and ACA regulations on the amount of its incentive but generally is not subject to limits under the EEOC’s regulations.
Sorting out how all of those rules apply can lead to substantial complexity for something as seemingly simple as a wellness program. Employers who have not reviewed their wellness programs for compliance with all applicable regulatory requirements are well-advised to do so soon.
EEOC Fact Sheet on Final Wellness Rules