Employers: Be Mindful When Implementing Wellness Programs

By: Judy Yi

In October 2016, the American Association of Retired Persons (AARP) sought an injunction against the implementation of the Equal Employment Opportunity Commission’s (EEOC) final rules on wellness programs, alleging that the final rules did not effectively protect the privacy of AARP’s members, among other things. On December 20, 2017, the United States District Court for the District of Columbia agreed with the AARP and ordered that the EEOC regulations governing wellness programs incentives be vacated effective January 1, 2019.  Now that the D.C. Circuit’s decision has taken effect, employers who wish to consider moving forward with wellness programs will want to keep a watchful eye for new regulations.

 Commentators anticipated that the EEOC would submit new proposed wellness program rules by June 2019.  However, by motion to the D.C. Circuit dated January 15, 2019, the U.S. Department of Justice, on the EEOC’s behalf, provided that, “[i]t would also be permissible for the EEOC to decide never to issue such regulations, or for the EEOC to study the issue for several years before commencing  new rulemaking.”  In other words, the EEOC advised the court that it may take a “wait and see” approach to forming new corporate “wellness rules,” and also signaled its position that the court does not have the power to direct the agency to adopt any new rules. 

Given the uncertainty surrounding the EEOC’s wellness rules, employers should review whether any wellness program incentives comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  Employers with questions regarding their wellness programs would do well to consult competent counsel. 

 Stay tuned to Polsinelli at Work for further updates.