As background, employer wellness programs involving a disability-related inquiry (e.g., a health risk assessment) or a medical examination (e.g., a biometric screening) are limited to a 30 percent wellness reward under the EEOC’s final wellness rules. A financial incentive may be provided to individuals who voluntarily provide genetic information as long as certain requirements are met. Additionally, a notice must be provided to participants prior to the inquiry or examination. Pursuant to the judge’s decision in AARP v. EEOC, those rules would be vacated effective 2019, if the EEOC fails to finalize new regulations in 2018. (We discussed that ruling in the Jan. 9, 2018 edition of Compliance Corner.)
Specifically, this means that if the EEOC doesn’t reissue their regulations by Jan. 1, 2019, then the 30 percent inducement might no longer be permitted. If this happens, then it’s presumed that things would revert back to the ambiguous language of the EEOC’s requirement that a plan be voluntary if it offers an incentive. Thus, an employer with a 30 percent inducement under the HIPAA wellness rules with a health screening or disability inquiry could be in violation of the EEOC’s previous guidance.
In addition, if the EEOC doesn’t issue new rules, this impacts the ability to have a spouse complete a health risk assessment. This information is generally considered genetic information, but there was a specific exception in the EEOC GINA rules that allowed for it as long as it was up to 30 percent, only considered the spouse’s previous or current manifestation of a condition and the reward/inducement was separate from the employee’s reward. This is another part of the inducement rule that would be vacated. In other words, employers likely couldn’t provide a reward for a spouse’s completion of a health risk assessment.
However, this is all still speculation. We don’t know if the EEOC is going to promulgate new rules or impose some type of non-enforcement policy on plans that rely on their rules after Jan. 1, 2019. For now, nothing has changed, and the EEOC’s rules remain in place. We’ll report any updates in Compliance Corner and other resources as soon as the EEOC issues new rules or if the rules do become vacated. Also, it’s unlikely that there wouldn’t be some type of transition relief for any plans to come into compliance (in other words, we don’t believe the rules would be vacated automatically, making everyone offering this type of program out of compliance on Jan. 1, 2019).
It’s ultimately up to employers to determine how they’ll proceed in light of the EEOC rules possibly becoming vacated. Some may choose to rely on the EEOC’s rule in the future (especially when you consider the 30 percent reward allowed under HIPAA wellness program regulations). Others may instead choose to take a more conservative route and not offer any incentive to provide disability-related information. Either way, we could not advise on a specific course of action due to lack of guidance and would recommend employers discuss the issue with outside counsel.