EEOC’s Final Wellness Program Rules Challenged From the Left as "Invading Employees' Privacy"

October 28, 2016

The AARP has asked a federal court to block the Equal Employment Opportunity Commission's wellness program rules that allow employers to use financial incentives to encourage employee participation.  The lawsuit is the first legal challenge to the EEOC’s ADA and GINA wellness program rules that were published in May 2016, and are effective January 1, 2017.  The rules are meant to align the "voluntary" requirements in the ADA and GINA that prohibit employers from pressuring employees to participate in wellness programs, with the ACA's provisions that allow employers to use incentives for participation as high as 30 percent of the cost of employees' health insurance.  The AARP's lawsuit alleges the rules "depart starkly from the EEOC's longstanding position" on the ADA, fail to adequately justify the "dramatic reversal," and are inconsistent with accepted definitions of what "voluntary" means.  According to Dara Smith, a lawyer with the AARP Foundation, "We are virtually always allies with the EEOC," but "the EEOC’s new rules enable employers to use wellness programs to pressure individuals to reveal their health information using heavy financial penalties.  These coercive programs invade workers' privacy and leave workers vulnerable to employment discrimination based on disability or genetic information."