Do you currently offer a wellness program for your employees? Thinking about starting one? Without question, the fallout from a recent lawsuit will determine the shape your current or future program takes moving forward.Wellness programs have become increasingly popular among employers of all sizes. Whether they encourage smoking cessation or offer onsite yoga classes, many of these programs also include significant financial incentives for participants who share their personal health information by undergoing a health risk assessment (HRA).
Isn’t personal health information, well, personal?
It’s true that the Americans with Disability Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) specifically prohibit employers from requiring this sort of data from employees. But the key word here is “voluntary.” In 2016, the Equal Employment Opportunity Commission (EEOC) determined that employers could reward up to 30% of the cost of an employee’s healthcare coverage if employees choose to share specific health information with an employer.
And that’s the sticking point, at least according to a recent lawsuit filed by AARP against the EEOC. Since the savings lost by opting out are so high, any employee who chooses to withhold personal health information, for whatever reasons, is effectively penalized, according to the lawsuit.
What happens in December?
Simply put, the unforeseeable becomes actionable. That’s when employers finally learn what shape their wellness programs will need to take. After several delays, the EEOC has promised to issue final rules some time in December.
Of course, there’s no way to predict just what those final rules will look like — or what they’ll mean for your existing or planned program. Will the 30% reward or penalty become 20% or 10%? Is there a chance it will disappear altogether?
No one knows for sure and it’s leaving employers with affected programs, as well as those thinking about starting one, in an odd sort of limbo between now and that final ruling from the EEOC.
What’s an employer to do?
With so much up in the air, it basically leaves employers with three courses of action for now:
- Choice #1: Bet on the status quo. If you already offer a program with rewards or penalties near the current 30% threshold, you could simply continue business as usual. This, of course, runs the risk that you’ll be forced to undergo a significant, reactive overhaul if the EEOC changes that status quo in December.
- Choice #2: Follow a "better safe than sorry" path. Another option is to assume the EEOC will lower that 30% threshold and proactively reduce your program’s percentage on your own. Keep in mind that even if you guess the new number correctly, an employee who feels any penalty is unfair could still pursue legal action independently.
- Choice #3: Wait and see. Embrace the limbo and wait for the dust to clear in December. While this may keep you in step with the EEOC, it doesn’t guarantee there won’t be additional delays or further litigation against whatever new percentages are established.