The federal district court located in the District of Columbia has ordered the Equal Employment Opportunity Commission (EEOC) to reconsider two regulations it issued related to employer-sponsored wellness programs. AARP v. EEOC, No. 16-cv-2113-JDB (D.D.C. August 22, 2017).

The EEOC’s regulations describing how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to voluntary wellness programs that request health information from employees and their spouses were challenged in a lawsuit brought by AARP (formerly the American Association of Retired Persons). AARP alleged that the regulations conflicted with the requirements in both laws that wellness program participation had to be voluntary.   

More specifically, the regulations in question allow employers to offer incentives of up to 30 percent of the cost of coverage when an employee participates in a covered wellness program. According to the EEOC, this 30 percent incentive is consistent with language in the ADA and GINA that allows participation in wellness programs without violating either law as long as the participation is voluntary.

Agreeing with AARP, U.S. District Court Judge John D. Bates sent the regulations back to the EEOC for reconsideration on grounds that the EEOC came up with the 30 percent incentive figure without providing a reasoned explanation of how it arrived there. While the court acknowledged that voluntariness is a matter of degree, it was concerned that the agency did not explain how a 30 percent incentive might be voluntary but a higher incentive would not.

Under its ruling, the court has permitted the challenged regulations to remain in place for the time being while the EEOC reconsiders them, a process that could take several months or longer. In the meantime, AARP has asked Judge Bates to modify his ruling so that the regulations would expire on January 1, 2018, regardless of where the EEOC might be in the reconsideration process.    

A copy of Judge Bates’s decision in AARP v. EEOC is available here.

Members of the Center for Workplace Compliance (CWC) can read more here.