We previously reported that AARP was attempting to stop the EEOC’s final wellness program rules under the American with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) from taking effect on January 1, 2017.  AARP’s motion was denied by the D.C. District Court.

The latest development in AARP v. EEOC, Civil Action No. 16-2113, filed in the D.C. District Court, is that the District Court has ordered the EEOC to reassess these rules.  However, nothing has changed with respect to wellness plan compliance under the ADA and GINA, since the rules remain in effect during the EEOC’s required review.  This means that any wellness program offered in the meantime needs to continue to comply with the ADA and GINA rules, as well as other requirements.

The issue in the case is the definition of “voluntary” under ADA and GINA for purposes of a wellness program.  Although both the ADA and GINA permit collection of information as part of a “voluntary” program, neither the ADA nor GINA define voluntary.  (It is a violation of the ADA and GINA to collect information if the program is involuntary).

Under EEOC’s interpretation of the term “voluntary”, a wellness program will become involuntary in nature if the incentive (reward or penalty) made available for participation in the program exceeds 30% of the cost of coverage.  AARP argued that such interpretation is unreasonable.  The D.C. District Court agreed with AARP, granting its motion for summary judgment, indicating that the EEOC did not provide a reasonable explanation for deeming a program “involuntary” if the incentive exceeded 30% of the cost of coverage.

Although the court was within its authority to vacate the rules, it chose not to do so.  At present, employers maintaining wellness programs that ask disability-related questions, require medical examinations or acquire genetic information must continue to comply with the ADA and GINA final rules that took effect on January 1, 2017.