As we reported previously, on August 22, the U.S. District Court for the District of Columbia directed the Equal Employment Opportunity Commission (EEOC) to reconsider its regulations on employer wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. In AARP v. EEOC, No. 16-2113 (D.D.C. 2017), the court directed the EEOC to file a status report proposing a schedule for the EEOC’s review of its rules. The EEOC filed its status report on September 21, stating that it will need until August 2018 to issue a notice of proposed rulemaking and until October 2019 to issue a new final rule. The EEOC predicts that any revisions to its regulations likely will not become effective until January 2021 to give employers time to bring their plans into compliance with the new regulations. The EEOC also noted that its intentions could change based on the views of the new members of the Commission — President Trump’s pending nominees for the chair and for another vacancy.
AARP intends to respond by September 28 to the EEOC’s status report and will likely argue that revised regulations should be issued sooner. In addition, before the court is a pending motion filed by AARP to alter the court’s August 22 judgment and vacate the EEOC’s existing regulations or enjoin them prospectively. (The court had decided to remand the regulations to the EEOC for reconsideration rather than vacating them.)
For now, the EEOC’s existing regulations remain in effect. That means that employers may continue to offer incentives of up to 30 percent for participation in wellness programs. Employers should stay tuned for the court’s response to the EEOC’s status report and its ruling on AARP’s motion to alter judgment.