EEOC Given a Year to Once Again Update Wellness Program Rules

In May 2016, we blogged about the Equal Employment Opportunity Commission’s (EEOC’s) Wellness Rules Update, which proposed incentives (or penalties) for participating (or not participating) in wellness programs that may not exceed 30% of a group health plan. Next, we followed up in September 2017 with how the EEOC’s New Wellness Program Rules were a Bust as the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and the American Association of Retired Persons (AARP) argued that the requirements were in no way “voluntary” as employees who did not want to participate and can’t afford to pay the 30% penalty would be forced to disclose their protected information, when otherwise, they wouldn’t have to do so.
Fast forward to December 20, 2017, when Judge John Bates of the US District Court for the District of Columbia vacated the wellness plan incentive rules, forcing the EEOC to go back to the drawing board to rewrite the regulations and to pursue and follow the true, dictionary-defined term, “voluntary.”
The EEOC was first given a rather lackadaisical timeline: new proposed regulations – August 2018, final rule – October 2019, and an effective date in January of 2021. Now, the EEOC has been given a year to adjust the rules: status report to review rules – March 30, 2018, new proposed regulations – August 31, 2018, and an effective date of January 1, 2019.
What does this mean for you and your health and welfare plans?
If you’ve already engaged your health and welfare benefit consultants, claims payers and others to craft, build and roll out your wellness plans, then you’ve already made a strategic decision to have a wellness plan. You invested in a process to drive education, cost-sharing and to engage employees to take control of their health. Given this new guidance, there’s little to be gained by eliminating, revamping or second-guessing the decisions you’ve already made. Besides, take advantage of the confusion and continue your competitive offering, because you can believe other employers will.
So, for now, maintain your plans and continue to provide incentivized achievements for your employees to better improve their well-being, and we will update you when new regulations and guidance become available.