The EEOC’s 2016 wellness program regulations are once again under fire. On October 24, 2016, AARP filed a complaint against the EEOC in D.C. federal court challenging the EEOC’s rules relating to wellness programs. See AARP v. EEOC  Specifically, AARP seeks a ruling that the 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)) and Title II of the Genetic Information Nondiscrimination Act (the “GINA Rule”) (29 C.F.R. § 1635.8(b)(2)(iii)) are unlawful and request a preliminary injunction that would prevent the rules from taking effect on Jan. 1, 2017.  This suit is the first to specifically challenge the EEOC’s 2016 ADA Rule and GINA Rule.

AARP, which is a nonprofit organization dedicated to addressing the needs and interests of people age fifty and older, is concerned that older workers will be disproportionately affected by these regulations because older workers are more likely to have medical issues that would be disclosed to employers by medical questionnaires and could potentially expose these employee to discrimination by their employer.

Both the ADA and GINA, in an attempt by Congress to prevent such discrimination, generally prohibit an employer from requesting medical information from employees’ and their dependents. Although both statutes have an exception that relates to participation in wellness programs, each law requires that the participation be voluntary, meaning that an employer may not penalize an employee for choosing not to participate.

However, AARP claims that the 2016 ADA and GINA Rules violate the Administrative Procedures Act as well as the ADA and GINA provisions that protect employees from involuntary disclosure of their health and genetic information because the regulations are arbitrary, capricious and an abuse of discretion.  According to AARP, the 2016 rules depart from the protections of the ADA and GINA by permitting employers to penalize employees by up to 30% of the full cost of individual health insurance premiums if they choose to keep their medical information confidential. This “penalty” applies both to the employee and his or her spouse separately.   AARP contends that these regulations are clearly contrary to the ADA and GINA and go against Congress’ clear intent to ensure that employees are not pressured to reveal medical or genetic information.

Furthermore, AARP points out that for years the EEOC defended the same position regarding employers penalizing employees for not providing medical information. See EEOC v. Honeywell, Inc., No. 14-cv-04517.  The EEOC’s position has consistently been that an employee’s participation in a wellness program was only voluntary if employers did not require participation or penalize employees who choose to keep their medical and genetic information private.  However, under the 2016 Rules, the EEOC now asserts that “medical inquiries and examinations in wellness programs are ‘voluntary’ as long as the penalty for refusing them does not exceed 30% of health insurance premiums for self-only coverage.” AARP v. EEOC Complaint at 23.  There is no explanation or justification provided by the EEOC for the 30% figure.  AARP claims that this is further proof that the EEOC’s regulations are arbitrary, capricious and an abuse of discretion because the EEOC did not explain the reversal of “its longtime position that medical inquiries and examinations are only ‘voluntary’ if employees are not penalized for refusing them.” Id. at p. 24.

As these issues continue to heat up, all eyes will be on the EEOC to see how it responds. Stay tuned.