In August 2017, the Unit­ed States Dis­trict Court for the Dis­trict of Colum­bia held that the U.S. Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) failed to pro­vide a rea­soned expla­na­tion for its deci­sion to adopt 30 per­cent incen­tive lev­els for employ­er-spon­sored well­ness pro­grams under both the Amer­i­cans with Dis­abil­i­ties Act (ADA) rules and Genet­ic Infor­ma­tion Nondis­crim­i­na­tion Act (GINA) rules.

At that time, the court declined to vacate the EEOC’s rules because of the sig­nif­i­cant dis­rup­tive effect it would have. How­ev­er, the court remand­ed the rules to the EEOC for reconsideration.

In Sep­tem­ber 2017, the EEOC filed a sta­tus report indi­cat­ing its sched­ule to com­ply with the court order, includ­ing issu­ing a pro­posed rule by August 2018 and a final rule by Octo­ber 2019. It stat­ed that it did not expect to require employ­ers to com­ply with a new rule before 2021.

In Decem­ber 2017, the court found the EEOC’s process of not gen­er­at­ing applic­a­ble rules until 2021 to be unac­cept­able. Instead, the court deter­mined that one year was ample time for employ­ers to adjust to new EEOC rules. The court vacat­ed the EEOC rules under the ADA and GINA effec­tive Jan­u­ary 1, 2019, and ordered the EEOC to pro­mul­gate any new pro­posed rules by August 31, 2018.

In Jan­u­ary 2018, the EEOC asked the court to recon­sid­er the por­tion of the court’s order that required the EEOC to pro­mul­gate new pro­posed rules by August 31, 2018. The court vacat­ed that por­tion of its order. The court’s order to vacate the por­tions of the EEOC’s well­ness rules under the ADA and GINA as of Jan­u­ary 1, 2019, remains.

Cur­rent and Upcom­ing Impact on Employ­er Well­ness Plans

  • Employ­ers are still sub­ject to the EEOC’s well­ness rules, includ­ing the incen­tive lim­its, through 2018.
  • If the EEOC does not pro­mul­gate new rules by the end of 2018, then the EEOC’s incen­tive lim­it rules will not apply to employ­ers’ well­ness pro­grams start­ing on Jan­u­ary 1, 2019. Employ­ers would only be sub­ject to HIPAA’s more lenient incen­tive limits.

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