The Equal Employment Opportunity Commission (EEOC) has been under court order since 2017 to better explain the rationale behind the incentive portion of the wellness rule it promulgated in 2016.


Janet Dhillon, new EEOC Chair

The rule governs employer-sponsored wellness programs and allows employers to offer an incentive equal to 30 percent of the cost of self-only health coverage to entice employees to participate voluntarily.

The AARP sued, saying the incentive was actually a penalty for those who didn’t wish to participate, as they would have to pay more for their health insurance, and therefore their participation would not be “voluntary.” District Court Judge John D. Bates heard arguments and ruled that the incentive in the wellness rule was “not well-reasoned.” He order the EEOC to revisit the rule and explain matters better.

The EEOC failed to meet its original rewriting goal of Jan. 1, 2019, and pushed it back to June 2019. This past week, it pushed the deadline back to December 2019, giving new Chair Janet Dhillon time to fashion an approach and explanation for the incentive, whatever percentage it finally comes up with.

To comply with the Americans with Disabilities Act (ADA) and Genetic Nondiscrimination Act (GINA), company wellness programs must be voluntary because much of the data collected during their operation is protected by the two acts. Thus the final rule must come up with a better rationale than the 2016 version.