Most recent posts

  XML Feeds

Search

« AWP Smoke and Mirrors2019 Formularies Now Available at MedBen.com »

EEOC Instructed to Revise Wellness Incentive Safe Harbor Regulations

12/30/18

  03:36:00 am, by MedBen5   , 389 words,  
Categories: News, Wellness, Incentives, Compliance, Regulatory

EEOC Instructed to Revise Wellness Incentive Safe Harbor Regulations

doctor and patient

On December 20, 2018, the Equal Employment Opportunity Commission (EEOC) issued two final regulations that remove from the EEOC’s final Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) wellness regulations the safe harbors for determining whether participation in such a wellness program is voluntary. This was in response to the U.S. District Court for the District of Columbia vacating the EEOC's wellness rule effective January 1, 2019 and instructing the EEOC to revise the regulations as to the voluntary nature of the safe harbors.

Prior to the regulatory change, the EEOC’s regulatory safe harbors were as follows:

  • The ADA regulations permitted a reward/penalty of up to 30% of the cost of single coverage in exchange for an employee’s participation in a wellness program.
  • The GINA regulations permitted a reward/penalty up to 30% of the cost of single coverage in exchange for a spouse’s participation in a wellness program (for a total reward of up to 60% of the cost of single coverage).

Given this late-in-the-year change, what does this mean for employer’s wellness programs in 2019? We believe that things will remain status quo for the time being. Why? Because the question of whether participation in a wellness program is voluntary for purposes of the ADA and GINA wellness regulations is a grey area that will likely not be addressed until at least June 2019.

The court case that set all of this in motion did not take the position that the 30% reward/penalty level was an inappropriate level to use. Instead, it took the position that the EEOC failed to provide a reasoned explanation for its decision to adopt the 30% levels in both the ADA and GINA wellness regulations.

Since the EEOC was clearly comfortable with the 30% level, it may still try to provide a reasoned explanation in its next round of regulations as to why the 30% number is appropriate. It is not likely that the EEOC will take issue with this approach until new regulations are issued, as long as an employer maintains its wellness program in accordance with the prior safe harbor rules. However, employers should be aware that employees might use the recent regulatory change to claim that their wellness program is not voluntary.

MedBen will continue to monitor this issue and provide updates as information is released. For more information, contact Caroline Fraker, Senior Vice President & CPO at 800-851-0907 or cfraker@medben.com.

No feedback yet