On December 20, 2017, the U.S. District Court ruled in favor of AARP v EEOC, stating that the EEOC has one year to write new rules that redefine “voluntary” wellness programs. In conjunction with this ruling, employers whom offer wellness programs that are incentive based will be required to adhere to the newly proposed guidelines effective January 1, 2019.
Wellness programming as employers know it today, could drastically change starting January 1, 2019. In other words, gratis the AARP, employers will no longer be allowed to offer conventional “forced” voluntary wellness programs. The ruling found that the EEOC failed to provide a reasoned explanation of how the allowance of large financial penalties aligned with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act that inquiries and exams as part of workplace wellness programs must be voluntary.
This means, that workers may no longer be financially coerced into providing medical information or undergoing medical exams and instead this type of participation in wellness programming must be genuinely voluntary beginning in 2019.
There are a number of scenarios to keep a close eye on as this unfolds. Some expert opinions believe that there is a 40% likelihood that the ruling stands. In the event that this takes place, the decision would only apply to programs that involve required medical exams or inquiries. Employers can utilize alternative strategies to remain in “Safe Harbor”.
Moving forward, it is OK to offer medical screenings and HRS’s coupled with incentives or penalties. Employers must recognize the governing rules associated with ADA and GINA stating that “voluntary” programs and their incentives can’t require medical exams. It is important for employers to stay within the governed 30% (50% for smokers) incentive guideline, while not combining any such offering with medical exams.
This certainly isn’t the last we will hear about this topic. The EEOC is charged with writing new rules that will take place in 2019. The definition of “voluntary” will be a heated debate and we can expect a clear line drawn moving forward. Employers should prepare to realign their incentive strategies while partnering with a vendor that can adequately support alternative “Safe Harbor” strategies.
If you have any questions please contact our Wellness Team.