AARP Sues EEOC Over Wellness Program Incentives

Law360 – The AARP sued the U.S. Equal Employment Opportunity Commission in D.C. federal court Monday seeking an injunction against its wellness program regulations, saying they violate anti-discrimination provisions by punishing employees who choose to keep confidential health information private.

The AARP, which represents nearly 38 million people over age 50, says the agency’s new wellness program regulations violate the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act by forcing nonparticipating employees to pay a “penalty” in the form of higher insurance premiums than those who participate.

“The EEOC’s 2016 wellness 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," the complaint says. “Yet, the ADA and GINA expressly protect employees’ medical privacy from such coercion.”

Following the complaint, the AARP also filed a motion for preliminary injunction looking to stay the Jan. 1 applicability date for the provisions of the wellness program laws that allow incentives for workers who participate in the programs and penalize those who don’t.

The EEOC in May finalized its rules outlining how employers can offer limited incentives for wellness plans. They allow wellness programs that ask questions about employees' health or require medical examinations to offer incentives of up to 30 percent of the total cost of the employee’s individual health insurance premiums of the plan. Information is often a blood test, blood pressure test or medical questionnaire.

The EEOC's rules say that wellness programs must be "reasonably designed" to promote health or prevent disease for the participant while confirming that the programs are voluntary as long as the incentives remain within a certain range.

But the AARP says the rule is not voluntary because it provides “significant compensation” to workers who share confidential health information, and enables employers to coerce them. While the EEOC had maintained that employee wellness programs are voluntary only if employers neither require participation nor penalize employees, the new rules depart from this position, the group says.

The AARP says employees who don’t participate are penalized by up to 30 percent of the full cost of their premiums, while under GINA, employers may charge an additional 30 percent penalty for keeping a spouse’s medical information private.

“In the 2016 rules, the EEOC failed to adequately justify this dramatic reversal, which is contrary to the ADA’s and GINA’s text as well as Congress’ clear intent to insure that employees are unencumbered by employer efforts to pressure them to reveal medical and genetic information likely to facilitate illegal workplace discrimination,” the complaint says.

The group asks the court to issue a declaratory judgment that provisions of the regulations related to penalties violate the ADA, GINA and the Administrative Procedures Act, and vacate those provisions.

Dara S. Smith of AARP Foundation Litigation told Law360 on Monday that older workers such as the organization’s members are disproportionately affected by wellness program penalties.

“Older workers tend to get more likely to have the type of health conditions that end up getting unearthed in wellness programs,” such as high blood pressure, heart disease or depression, Smith said.

The EEOC didn’t immediately respond to a request for comment on Monday.

The AARP is represented by Dara S. Smith and Daniel Kohrman of AARP Foundation Litigation.

Counsel information for the EEOC wasn’t immediately available.

The case is AARP v. U.S. Equal Employment Opportunity Commission, case number 1:16-cv-02113, in the U.S. District Court for the District of Columbia.

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