The U.S. District Court for the District of Columbia (Judge Bates) has denied AARP’s request to block the implementation of the EEOC’s final wellness regulations pending a decision on the merits. As we have discussed previously, the regulations address the extent to which an employer may offer incentives to participate in a wellness program without violating the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).  The final rules have taken effect as of January 1, 2017.

As we previously reported, AARP filed suit in October of this year, seeking to block the EEOC’s final rules, which were issued in May 2016.  Among other provisions, the final rules permit employers to offer workers up to 30 percent of the cost of self-only health insurance for participation in wellness programs that include tests or assessments that can reveal confidential medical information or genetic data.  In its complaint, AARP asserted that the incentives permitted by the final 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.”AARP asserted that the final rules “depart starkly from the EEOC’s longstanding position” that “employee wellness programs implicating confidential medical information are voluntary only if employers neither require participation nor penalize employees who choose to keep their medical and genetic information private.”

The district court denied AARP’s request for a preliminary injunction, finding that AARP failed to demonstrate that its members would suffer irreparable harm if the rules became effective as scheduled. The court further found that the evidence presently in the record did not support a finding that AARP is likely to succeed on the merits of its arguments.  Although the court provided detailed analysis that supports deferring to the EEOC, the court reserved final judgment on the merits until after the parties produce an administrative record and provide further briefing.

The suit will now proceed to development of the administrative record and arguments on the merits. In the meantime, the regulations will remain in effect.

We will continue to monitor this case and report on further developments.

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