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Changes to EEOC Wellness Rules coming in 2019

Published on March 8th, 2018 by Triton Benefits & HR Solutions

Sponsored wellness plans have become increasingly popular with corporate employers, helping to boost engagement and satisfaction among the workforce. Previously, the Equal Employment Opportunity Commission (EEOC) created rules to help guide these wellness plans. However, the U.S. District Court for the District of Columbia recently vacated these standards.

Protecting employee health information

Personally identifiable information is particularly sensitive, especially when it relates to an individual's health status. In the summer of 2016, the EEOC established a new rule related to employee wellness plans, connecting exceptions that came as part of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). As the Society for Human Resource Management's Jonathan O'Connell pointed out, both ADA and GINA include rules to help safeguard sensitive health and genetic information, ensuring that employees don't have to disclose these

"The rules created by the EEOC enabled businesses to take certain action in the hopes of persuading employees to disclose health information."

details. Both laws also included an exception, wherein employees were able to voluntarily disclose these health details, if they so chose, to be used in conjunction with an employer-sponsored wellness program.

The rules created by the EEOC under ADA and GINA enabled businesses to take certain action in the hopes of persuading employees to disclose safeguarded health information for an employee wellness plan – namely, increasing the cost of health insurance premiums for those who did not share health details on wellness questionnaires.

"[E]mployers could implement penalties or incentives of up to 30 percent of the cost of self-only coverage to encourage employees to disclose ADA-protected information, without causing the disclosure to be involuntary," O'Connell wrote. "The GINA rule similarly stated that offering a 30 percent incentive to an employee to disclose certain genetic information would not render the disclosure involuntary."

The EEOC rule was put into place in January 2017. 

AARP urges rules to be vacated

However, the AARP filed a motion against the EEOC and its financial penalties for employees, urging the Commission to reconsider the final version of its employee wellness program rules. The AARP noted that, given the EEOC standard enabled employers to penalize workers and make them pay higher health insurance premiums if they did not disclose their health data, the rule violated the voluntary standards set in place by ADA and GINA.

"While workplace wellness programs are promoted as a way to stimulate healthy behavior, many employees do not want to share the highly personal information that is required to participate and could be used to discriminate against these workers on the job," David Frank wrote for AARP. "AARP sued the EEOC in October 2016 on the grounds that EEOC's wellness rules were coercive, making workers pay much more for health insurance if they decided to protect private medical information."

Woman in pink tank top holding barbells with straight arms out to side. Under newly vacated regulations taking effect in 2019, employers cannot penalize employees who don't share sensitive health information for a wellness program.

U.S. District Court Judge John D. Bates sided with AARP, granting the motion to vacate the EEOC regulations. In order avoid considerable disruption to employee wellness plans, the rules were not immediately removed, and instead will be vacated effective January 1, 2019.

"Making the rules ineffective two years sooner than the agency proposed is a major victory for workers," says Dara Smith, the lead attorney in the case for AARP Foundation Litigation. "It means two fewer years of coercive penalties imposed on employees who exercise their civil right to keep private health-related information private in the workplace."

Amending wellness programs

In light of these changes, employers have just under one year to revise their wellness programs and remove the premium penalties associated with refusal to share health information.

The bottom line for human resource teams is that especially sensitive, personally identifiable information must be safeguarded, and that health details in particular must only be voluntarily requested. Employees are under no obligation to provide health data on exams or questionnaires.

To find out more about structuring your employee wellness plan in a way that aligns with current regulations, connect with the experts at Triton Benefits and HR Solutions today.