Employee wellness seems like a good thing. Employers, employees and taxpayers all benefit when citizens are healthier. There would be benefits for those involved in workers’ compensation claims. So government sought to allow incentives for wellness. What seemed like a simple concept got very complicated, involving layers of federal and state law, and regulations, and court litigation.

Fast forward to 2019, regulatory battles, and delays over wellness programs continues to get more complicated.

Pushing its deadline back for the second time, the Equal Employment Opportunity Commission (EEOC) recently announced that it plans to issue amended regulations related to incentivizing participation in employer-sponsored voluntary wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) by the end of this year.

The EEOC finalized wellness program rules in May 2016, only to have a federal district court vacate portions of the rules in August 2017.

The court required the EEOC to revise the incentive-limit portion of the rules (which stated that employers could use an incentive or penalty of up to 30 percent of the cost of self-only coverage to encourage participation in an employer-sponsored wellness program without rendering the program “involuntary” in violation of federal statutes) by January 1, 2018.

Right before the January 1 deadline was set to expire, the EEOC scrapped the portion of its final rules related to wellness program incentives. In its regulatory agenda published in Fall 2018, the EEOC said that it would publish new regulations by June 2019. However, with that deadline approaching, the agency once again moved the goal post.

Part of the EEOC’s holdup with issuing new rules on wellness program incentives was that the Commission – comprised of presidentially appointed members – was awaiting the confirmation of two members (including a chair) and a general counsel.

However, within a matter of days following this month’s swearing-in of new EEOC Chair Janet Dhillon, the agency unveiled its spring regulatory agenda for 2019 that included an update on the wellness program rules.

The agency is developing a notice of proposed rulemaking to address wellness programs under both the ADA and GINA in response to the court’s August 2017 ruling. The agenda also indicated completion by December 2019.

During her confirmation hearing, Dhillon testified that she would rewrite the regulations to comply with both congressional intent and the court’s August 2017 opinion in AARP v. EEOC.

Legal experts believe new regulations will likely go to great lengths to encourage participation in wellness programs – including possibly raising the 30 percent cap under the old rules – as well as provide greater clarity on where incentives stand with respect to ADA and GINA compliance..