In October 2016, AARP sued the Equal Employment Opportunity Commission (“EEOC”) under the Administrative Procedures Act (“APA”) arguing that there was no explanation for the shift in the EEOC’s position relating to what makes participation in a wellness program “voluntary”.  Originally, the EEOC argued that in order for a wellness program to be “voluntary,” employers

Since Election Day, prognosticators and pundits have been speculating about how the Trump Administration’s actions will impact existing laws and regulations. Now that President Trump and his team have hit the ground running, what can we expect from the Department of Labor (including OFCCP), the EEOC and the President’s own executive actions in the areas

As previously discussed, AARP has filed suit against the EEOC and challenged the agency’s wellness regulations.  See https://www.disabilityleavelaw.com/2016/10/articles/ada/the-eeocs-2016-wellness-program-regulations-the-saga-continues/  On December 29, 2016, this challenge suffered a setback.  In the December 29, 2016 Memorandum Opinion, U.S. District Judge John D. Bates denied AARP’s request for preliminary injunction and held that the regulations would take effect

Although the EEOC rarely files suit seeking to redress violations of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), on October 31, 2016, the United States District Court for the Eastern District of New York entered a three year consent decree against a New York home health agency in a class action brought by the EEOC which alleged violations of Title II of the Act.  In Equal Employment Opportunity Commission v. BNV Home Care Agency, Inc., Case No. 14-cv-5441 (E.D.N.Y. Oct. 31, 2016), the EEOC alleged that the defendant, a home health agency, maintained a policy of unlawfully requesting genetic information from a class of applicants and employees.  The EEOC alleged that the home health agency violated GINA when it asked applicants and employees to provide family medical history on the company’s “Employee Health Assessment” form.  Specifically, applicants and employees, including home health aides, were asked to identify whether they or any family members had experienced any of a list of 29 medical conditions including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy or cancer.  The company claimed that it requested the information from applicants and employees for the protection of its patients.

Although the Court did not rule on the merits of the case, it approved a three year consent decree entered into between the EEOC and the home health agency which mandated injunctive relief, training, posting and distribution of notice regarding resolution of the lawsuit, ongoing reporting and compliance obligations, and the payment of $125,000 to a class of affected applicants and employees. 
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The days of referring to the EEOC’s guidance on wellness incentives under the ADA and GINA as “long-awaited” may be coming to an end.   The EEOC announced that it has sent a Notice of Proposed Rulemaking (NPRM) on this issue to the Office of Management and Budget (OMB) for clearance.

The NPRM is not available

After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought its third lawsuit in about two months, alleging that the employer’s wellness program was not “voluntary” due to the “large” and “substantial” penalties to those who chose not to participate. Because the program was involuntary,