Employers eager for some clarification about the legality of the incentives they use in their workplace-wellness programs will continue to be in the dark following a change from the U.S. Equal Employment Opportunity Commission.
In late December, the EEOC entirely removed language from its regulations guiding how incentives can (or can’t) be used as part of employer-sponsored health programs. In 2016, the agency issued regulations allowing employers to offer an incentive equal to up to 30 percent of the cost of employee-only coverage to entice workers to join an employee-health program. Prior to that, employers had little to nothing in the way of guidance about whether such moves–specifically those tied to medical questions that some deemed violations of the Americans with Disability Act or Genetic Information Nondiscrimination Act–were permissible.
The following year, the U.S. District Court, following a lawsuit from AARP, ordered the EEOC to revise its incentive-limit language, which it deemed insufficient. The agency was given until Jan. 1, 2019, to do so and, instead of revamping the requirements, about two weeks before the deadline, removed the incentive section entirely. The regulations still on the books in the Federal Register don’t provide any clear-cut direction on the use of incentives for programs that involve health assessments.
“In doing so, the EEOC left employers back in the quandary they were in before,” Jackson Lewis P.C. shareholder Patricia Anderson Pryor wrote in the National Law Review. “Neither the law, nor the remaining regulations, expressly prohibit (or permit) incentives.”
According to TotalWellness president and founder Alan Kohll, writing for Forbes, the EEOC could revise the rules again this summer, but final guidance wouldn’t be available until 2020 at the earliest.
“Employers managing wellness programs,” Kohll cautioned, “should continue to monitor developments, including the issuance of any new wellness-program regulations, and work with legal counsel to ensure their wellness programs comply with all applicable laws.”