Once again, the Equal Employment Opportunity Commission’s wellness regulations relating to the Americans with Disabilities Act, particularly those relating to wellness incentives, are being scrutinized. 

Following last month’s article (see Wellness Rule Review Fast Track, Benefit Beat, 1/16/2018),  the Equal Employment Opportunity Commission (EEOC) filed a motion with the U. S. District Court for the District of Columbia requesting reconsideration of several matters; in particular, the specific timeframe set by the Court to issue proposed clarifying rules.  In response to the EEOC’s motion, the Court modified its position, saying that the EEOC is not compelled to issue proposed regulations by August 31, 2018.  However, the Court affirmed that the incentive portion of the regulation remains vacated, effective as of January 1, 2019.  What this means is that unless EEOC guidance is provided between now and then, any wellness incentive based on the collection of medical information derived from a disability-related inquiry or medical examination will not be permitted beginning January 1, 2019. 

In the interim, employers should begin reviewing their wellness program to identify if any of the wellness program components require the collection of medical information or require a physical exam.  These are the components of a wellness program that will be impacted.  If any aspect of the wellness program is contingent upon the collection of medical information or a medical exam, the employer should look at options to ensure voluntariness, i.e., make sure no incentive is tied to the collection of medical information or imposition of a medical exam, including biometric testing. Programs such as a tobacco-cessation program that requires attestation from the participant of abstaining from tobacco products without requiring the related blood testing for the presence of nicotine or tobacco, or, a health risk assessment that asks questions such as, how many times a week do you eat broccoli?, or, an activity-based program such as a walking program, will not be implicated by the vacating of this segment of the EEOC rules. However, the HIPAA and Affordable Care Act wellness program rules would continue to apply to these matters.

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