AARP vs. EEOC: What Happened, and What’s Next?

I recently moderated Businessolver’s latest webinar, “AARP vs. EEOC: 4 Things You Need to Know,” a lively discussion with three experts in benefits and workplace wellness.

While the session had great engagement and participation, we also heard from many HR/benefits pros who weren’t able to attend. So here’s a quick recap of what happened and what happens next for workplace wellness.

Last month, a federal court ruled in AARP vs EEOC case that effective Jan. 1, 2019, employer-sponsored wellness programs must be truly voluntary. Unless the EEOC (Equal Employment Opportunity Commission) can write new rules before then, employers cannot offer incentives or threaten penalties for wellness program participation involving medical exams, screenings, or inquiries.

What happened?

Before the ruling, any wellness programs involving medical exams, screenings, or other inquires had to be voluntary in order to comply with the Americans with Disabilities Act and Genetic Information Nondiscrimination Act. But what does “voluntary” mean? Exactly.

Before this ruling, there was no clear definition of “voluntary,” so employers got creative. AARP sued EEOC on the grounds that certain wellness programs were actually coercive, rather than voluntary.

What happens next?

The webinar outlined three things employers can do now to prepare for 2019:

1. Understand the impact of your current plan design. What changes can you make? Because the ruling says that employer’s ability to request or obtain medical information for their employees or their families can only be obtained through a “voluntary” wellness program – employers may consider plan design changes to ensure their wellness plans are truly voluntary. Look at your plan and make adjustments.

2. Explore alternative plan options. You can remove the incentive or penalty from the health exam requirement, provide the incentive or penalty to everyone, or provide alternatives to the exam/health questionnaire that can provide the same rewards. You can also replace a health exam with an educational course, or provide a fitness program that doesn’t require a medical exam or inquiry. Remember, the higher the penalty the greater the risk, so you can consider lowering the penalty or incentive to a manageable amount for all your employees. There isn’t that much time to adjust your plan for the next year so start early.

3. Stay up to date. The EEOC is required to make changes to the rules before Jan. 1, 2019 but they should be submitting the rules for review by August 2018. Recently, the EEOC filed a motion indicating that they may not be in charge of making new rules under a deadline. If this motion is upheld, the vacating (or removal) of current rules would stay in effect. Be sure to keep checking on any updates frequently.

At the end of the day, employers need to think: “Is this wellness or health program directed to employees or is it for employees?” and craft strategy accordingly.