Just when brokers and wellness professionals began to breakdown the new wellness regulations proposed by the EEOC on January 7, 2021 things came to a screeching halt on January 21st when the Biden administration froze all proposed rules from every agency including the EEOC.
In addition to freezing the proposed rules, there was a new Chair and Vice-Chair appointed to the EEOC which likely means the proposed rules will not get republished as they stand. It is thought that any new rule changes will fall on the side of de minimis rewards in order to ensure that programs that ask for clinical information are “voluntary.”
What’s most interesting as we look into the future of wellness programs, is that the new limits on rewards would only apply to clinical programs that ask an employee for medical information such as biometrics and health questionnaires. Activity-based programs are currently exempt from these limits because without the clinical exam or inquiry they are not covered by the Americans with Disabilities Act (ADA) and not regulated by the EEOC. Activity-based programs are non-clinical activities that employees are encouraged to participate in such as educational content, classes, step challenges, etc.
Furthermore, for those die-hard employers that have a hard time picturing wellness without biometrics, there are options to make screenings a voluntary portion of a wellness program. Specifically, programs that allow employees to earn rewards by a combination of activities can be maintained without incentive limits.
Combination programs often involve points to meet a certain level and are structured in such a way that participants can meet the achievement levels through activity-based items only. Therefore, if they choose to participate in the biometrics as a way to earn points, it would be voluntary at that point.
With no proposed rules in the federal register or out for public comments combined with a new make-up in the EEOC, these are uncertain times for employers who have been tying up their incentive dollars in mandatory biometrics and health questionnaires. Not only do activity-based programs, like Motion Connected, fall outside of the ADA and EEOC jurisdictions, but they are often more fun, less expensive, and inherently engaging on their own in comparison to biometric screenings.
Where does this leave companies currently with programs that put so much emphasis on biometrics?
Though employers are not required to make changes to their wellness program today, it would make sense to transition programs to include participatory elements in anticipation of where the new EEOC leadership may guide future regulations.
In particular, adding high impact behaviors such as physical activity (eg. through challenges) would both put programs on safer ground with regard to regulations and start to engage populations in meaningful behavior change.
The information provided in this alert is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services. This is not legal advice.