As we have previously discussed in detail in several blogs (New EEOC Regulations Provide Roadmap for Wellness Programs; EEOC Issues Final Rules On Employer-Sponsored Wellness Program Compliance Under the ADA and GINA; and District Court Decision Upholds Employer’s Wellness Program But Signals Support for EEOC Positions Going Forward), the EEOC issued final rules in May 2016 on the extent to which an employer may offer incentives to participate in a wellness program without violating the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). The final rules were intended to put to rest uncertainty as to the line between a permissible incentive to participate in a wellness program and an impermissible penalty for not participating in the program. The line that the EEOC drew appeared to be consistent with an authorization for wellness programs under the Affordable Care Act.

AARP has now sued the EEOC to block the May final rules. In its complaint, AARP asserts that the EEOC’s final rules did not go far enough to avoid compelling participation. AARP asserts that the incentives permitted by the final rules “enable employers to pressure employees to divulge their own confidential health information and the confidential genetic information of their spouses as part of an employee ‘wellness’ program.” AARP argues that the final rules “depart starkly from the EEOC’s longstanding position” that “employee wellness programs implicating confidential medical information are voluntary only if employers neither require participation nor penalize employees who choose to keep their medical and genetic information private.” The complaint alleges that the final rules are contrary with Congressional intent and that the EEOC did not adequately justify the standard for voluntariness in its final rule.

AARP is seeking a preliminary injunction that would keep the final regulations from going into effect on January 1. If AARP is successful, common wellness programs will again be called into question—for example, premium discounts and prizes for participating in health risk assessments and screenings.

We will continue to monitor this case and report on further developments.