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Employer wellness programs have become increasingly popular in recent years as a device that might be a "win-win" to reduce health care costs, improve employee health and productivity, and also show that the company is interested in the well-being of its employees.  However, wellness programs (including those which require medical examinations before allowing employees to participate) are often challenged by plaintiffs groups as violating the Americans’ With Disabilities Act (ADA) or other federal laws.  The AARP recently challenged the Equal Employment Opportunity Commission (EEOC) wellness program regulations, as to whether a program is truly voluntary if employees must choose between receiving up to a 30% decrease in health insurance premiums or providing their family’s personal health information to their employer.  The AARP contends that the regulations permit companies to penalize workers who do not join wellness programs because they are opposed to sharing their medical information with their employer.  The EEOC issued the regulations following a 2013 case involving Honeywell International, Inc., which found a violation in such situations, and following passage of the 2010 Affordable Care Act, which encourages the use of wellness programs.

Both the ADA and the Genetic Information Nondiscrimination Act (GINA) restrict employers from collecting medical or genetic information from their employees, but allows some collection in wellness programs as long as the information is voluntarily provided by the employee.  As neither statute specifically defines voluntary participation, the rules established in 2016 set forth specific criteria.  The AARP sued to block the rules from taking effect and, in a ruling in late August, the AARP won a pre-trial judgment in a challenge to the rules, the court finding the EEOC had not sufficiently explained its rationale for its criteria.  AARP v. EEOC, 2017 WL 3614430 (D.D.C. 8/22/17).  The court instructed the EEOC to reconsider them but denied AARP’s request to vacate the rules, saying that such actions would throw the legality of many wellness programs into question.  Thus, for the present time employers are allowed to take advantage of the EEOC wellness program regulations while EEOC is reviewing the status.

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