Wellness Incentive Rules – and the Saga Continues…

Yep, the Equal Employment Opportunity Commission (EEOC) is back to the drawing board, reworking and finalizing new wellness regulations for 2019. We know that all wellness programs must be deemed “voluntary” for employees to participate in; but employees can be penalized thousands of dollars for not doing a screening or answering personal health questions through a Health Risk Assessment (HRA). That may not sound voluntary to some – and a federal court came to the same conclusion last month when it made its decision against the EEOC rules.

Here are some highlights of recent and upcoming wellness regulation changes:

May 2016: The EEOC issued final rules detailing incentive limits (finally, some legislative guidance for employers on the topic!) See my blog and our compliance update.

October 2016: AARP, fighting for workers’ civil rights, filed a lawsuit against the EEOC (that was later denied) calling the EEOC’s rules coercive.

December 2017AARP fought once again to throw out the EEOC rules. In AARP v. EEOC, the U.S. District Court ordered the EEOC to redraft rules and shed light on incentive levels.

August 2018: By the 31st of the month, the EEOC must issue a draft of the new proposed rules.

January 2019: Old EEOC rules will officially be vacated – expect changes.

For now, continue to conform to the current EEOC, HIPAA and ACA rules – and keep a close eye on any future guidance from the EEOC. We don’t know exactly what’s going down in 2019, but here’s a hunch:

  • Expect incentive/penalty limits to be capped at a smaller number. Financial incentives can be powerful, but with smaller limits on the 2019 horizon, it may give us good reason to get creative and spend less on cash incentives. 
  • “Voluntary” programs may need to be truly elective. This means no more coercing employees to participate in screenings and HRAs. You can still offer them and incorporate incentives/penalties, you just need to provide a second option that doesn’t have to do with an HRA/screening.

Will these changes give a reason to scratch wellness programs or incentives altogether? Absolutely not! Stick with wellness. I stand behind the fact that “non-financial” benefits are just as important as direct ROI. I’ve seen wellness boost morale, creating happier employees – something that should not get overlooked as we move into 2018.

Like it or not, by 2020 the millennial generation – a generation that expects wellness benefits – will make up half of the global workforce. It’s a good time to spice up your offerings and find ways to rework incentives or deal with a population of bitter millennials… and nobody wants that.

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