If your firm offers or are thinking of offering a wellness program, hit the brakes.
The compliance and regulatory requirements for some wellness programs could be significantly affected by
AARP and EEOC (Equal Employment Opportunity Commission) pending litigations. Generally those that are
“health-contingent” or “outcome-based”.
Currently there are many rules that control certain wellness programs such as:
- HIPAA (Health Insurance Portability and Accountability Act) forbids any discrimination in premiums or
plan eligibility based on health factors but offers exceptions to some programs - ACA (Affordable Care Act) extended HIPAA exceptions to allow a 30% penalty or incentive for
participation in wellness programs and a 50% penalty for tobacco usage. - ADA (American Disability Act) doesn’t allow for discrimination based on disability
- GINA (Genetic Information Nondiscrimination Act) doesn’t allow genetic information to be used to
discrimination in participation in wellness programs.
Basically the disparity between the AARP and the EEOC is if the wellness program can be defined as
voluntary. AARP states that “the EEOC failed to adequately establish that a 30% incentive does not render a
wellness program involuntary.”
The Washington, DC District Court agreed with AARP and granted judgment ordering the EEOC to vacate its
regulations. As of this writing the court order will be effective January 1, 2019. Hence an employer who
wishes to offer an outcome-based wellness program has limited options:
- Should your program involve asking health related questions or require medical testing suspend these
practices. - Ignore the EEOC regulations and instead differ to the less restrictive HIPAA regulations and ACA
amendments which followed - If not offering a wellness plan postpone until 2020 (however there are no guarantees this issue will be
settled by then) - Set up a totally voluntary, non-outcome-based wellness program that is not subject to any of the
previously mentioned regulations.
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