In October last year, the AARP filed a complaint against the Equal Employment Opportunity Commission (EEOC) about the EEOC’s wellness rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Specifically, the AARP complained that the EEOC went against Congress’ intent by allowing a 30% incentive maximum under the ADA and GINA for purposes of gathering employee or family health information through workplace wellness programs. The AARP argued that the EEOC’s incentive maximum was arbitrary and unjustified.
Yesterday, the U.S. District Court in the District of Columbia issued an order agreeing with the AARP’s argument. The court refused to defer to the EEOC’s judgment in interpreting what is meant by a “voluntary” wellness program that seeks health or genetic information from employees or their family members. Instead, the court questioned whether the EEOC had truly evaluated the incentive limit in light of the purposes of the ADA and GINA, which are to prevent discrimination against employees on the basis of a disability or genetic precondition. The court noted that the EEOC failed to provide a convincing rationale for its incentive limit and seemed to ignore the data and concerns provided by other stakeholders. The court highlighted a significant concern expressed by some stakeholders that a 30% incentive level “was likely to be far more coercive for employees with lower incomes, and was likely to disproportionately affect people with disabilities specifically, who on average have lower incomes than those without disabilities.” Opinion at 26.
As a result, the court ordered the EEOC to go back to the drawing board, evaluate the evidence about what incentive limit constitutes the dividing line between voluntariness and coercion, evaluate the impact of its decision on various groups, and then adequately explain its decision on what a “voluntary” incentive limit may be. Importantly, the court did not vacate the current incentive limits under the ADA and GINA rules – the 30% maximum incentives are still intact. However, those who work in the workplace wellness industry may be wondering what to expect in light of this court decision. Here are a few insights:
What Should You Do Now?
Until the EEOC changes its rules, you should continue to abide by the ADA and GINA wellness incentive rules as currently written. By September 21st, we should have a better idea of when the EEOC might change its rules. We may also know whether it intends to appeal the court’s decision. The Center for Health and Wellness Law will continue to monitor any developments in wellness law. As always, if you need compliance assistance with workplace wellness program development or implementation, contact us. We are here to help you.