Court tells EEOC to reconsider workplace wellness plan incentives

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Court tells EEOC to reconsider workplace wellness plan incentives
Court tells EEOC to reconsider workplace wellness plan incentives

The AARP is calling a federal court's decision Tuesday to have the Equal Employment Opportunity Commission reconsider workplace wellness plan incentives “a tremendous victory for workers,” although the final outcome in the matter remains to be seen.

The AARP sued the EEOC in October after the agency issued new rules the previous May indicating that employers could provide financial and other incentives to employees who answered questions related to disabilities or underwent medical exams as part of a wellness program, whether or not the program was part of a health plan.

The agency capped cost incentives for participating workers at 30%. The rules, which reversed previous policy, went into effect Jan. 1.

The Americans with Disabilities Act and the Genetic Information Nondiscrimination Act permit employers to collect medical and genetic information from employees who participate in wellness programs as long as the employees provide the information voluntarily, Judge John D. Bates of the U.S. District Court for the District of Columbia noted Tuesday in his decision. The meaning of the word voluntary is not defined in the laws, however, he added.

The EEOC's previous policy was that a wellness program was “voluntary” if employers did not condition the receipt of incentives on employees' disclosure of information protected by the ADA or GINA, Bates said.

“AARP argues principally that the 30% incentives permitted by the new rules are inconsistent with the ‘voluntary' requirements of the ADA and GINA, and that employees who cannot afford to pay a 30% increase in premiums will be forced to disclose their protected information when they otherwise would choose not to do so,” he wrote.

Bates said that the EEOC had not provided a “reasoned explanation” for its decision to adopt the 30% incentive levels in both the ADA and GINA rules. Vacating the rules, however, would be “likely to have significant disruptive consequences,” he added.

“Employers who adopted incentives would be faced with the possibility that their current health plans are illegal; at best, employers would once again be left in limbo as to what is permitted and what is not with regard to incentives,” Bates said. Therefore, he asked the agency to reconsider its rules.

“This is a tremendous victory for workers,” Lisa Marsh Ryerson, president of AARP Foundation, told McKnight's Senior Living. Attorneys from the foundation's litigation team are representing AARP in the lawsuit.

“No one should be coerced into revealing personal health information in the workplace,” Ryerson added.

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