EEOC’s Final Wellness Regulations Take Effect Despite AARP Challenge

By Anne E. Baggott

The Equal Employment Opportunity Commission’s (EEOC) final rules on wellness programs have withstood an initial legal challenge from the American Association of Retired Persons (AARP).

On May 16, 2016, the EEOC issued final rules that, among other things, clarified how certain terms of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs. Specifically, the final rules explain how a wellness program may be “reasonably designed” to promote health or prevent disease, an EEOC requirement for wellness programs. The final rules also define how an employee can be deemed a “voluntary” participant in a wellness program. These terms had been left undefined prior to the adoption of the final rule, and had caused consternation for employers seeking to comply with the EEOC wellness program rules. In addition, the rules allow employers to provide incentives up to 30 percent of self—only coverage for workers participating in a wellness program that includes a disability related inquiry or medical examination (including a tobacco related screening). 

In October 2016, AARP filed suit challenging the final rules and seeking a temporary injunction to prevent the rules from taking effect on January 1, 2017. Specifically, AARP argued that the final rules did not protect the privacy of its members because they effectively allowed employers to force workers to participate in wellness programs by allowing employers to levy a penalty upon employees who choose not to participate.

The United States District Court for the District of Columbia denied AARP’s motion for preliminary injunction, and thus the rules have gone into effect as scheduled. Employers may proceed with implementing their wellness programs by relying on the final rules – but proceed with caution. Although the court did not enter a preliminary injunction, AARP’s case against EEOC is still going forward, and a permanent injunction is still possible after further briefing.