UPDATE: Here is the link to a January 18 webinar on this topic.
Looks like Festivus came early for Quizzify this year…
Thanks to the AARP (which won “best organization” in Monday’ Wellness Stars posting), as of January 2019, it will no longer be allowable to offer the conventional “forced “voluntary wellness” programs that wellness vendors are so enamored of…
…unless they include a program like Quizzify. Uniquely in the wellness industry, Quizzify was actually designed with this contingency in mind, and offers a guarantee that an organization using Quizzify will not lose an EEOC challenge. Because Quizzify doesn’t involve a medical exam or the disclosure of medical information, it is not covered by GINA or ADA…and is not subject to EEOC regulations or jurisdiction.
Several vendors — It Starts With Me, Sterling Wellness, Sustainable Health Index and Switchbridge — already offer Quizzify in conjunction with screening. They, and their customers, will have the safe harbor automatically.
Otherwise, if you are an employer, you should look into Quizzify or a company like Quizzify that is not subject to EEOC. As long as it is an option, an employee is not forced to do wellness…and therefore you are not subject to EEOC. (Your vendor should guarantee that.)
If you are a vendor, you should partner with a company that is not subject to EEOC and is willing to provide the same guarantee/indemnification that its use doesn’t break any rules.
PS It is also possible that Congress will override this decision, and reconsider HR1313, the Required Employee DNA Disclosure Act. To which I say, good luck with that.
It’s not just us writing in an eggnog-induced haze who think this is huge. Here is The Incidental Economist weighing in.
The back story from AARP
Late yesterday (12/20), we received the great news that the federal district court granted AARP’s motion to vacate the EEOC’s wellness regs!
As you will recall, last August, the District Court for DC ruled for AARP in our challenge to the EEOC’s 2016 regulations, finding that the agency failed to provide a reasoned explanation of how the allowance of large financial penalties (usually in the form of much higher health insurance premiums) squared with the requirement under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act that inquiries and exams as part of workplace wellness programs must be voluntary. The court required the EEOC to go back to the drawing board and re-do its regulations in accordance with the court’s opinion. However, the judge left the faulty rules in effect, citing a concern about the risk of disruption to the employers’ already-planned benefits offerings, and told the EEOC to submit a schedule for redoing the rulemaking. The EEOC’s proposed schedule would have left the EEOC’s coercive rules in effect for at least another 3 years (2018 through 2020, see e.g., ADA schedule here).
AARP objected to the “manifest injustice” of permitting workers to continue to have their civil rights and medical privacy violated while the EEOC re-regulates, and we filed a motion asking the judge to reconsider and to vacate the rules as of January 2018 or as soon as possible thereafter. Yesterday, the court granted AARP’s motion to alter and amend its prior order to invalidate the rules. Although the order is coming too late to address coercive penalties for the 2018 enrollment year, the vacatur will take effect as of Jan. 1, 2019. This means that workers may no longer be financially coerced into providing medical information or undergoing medical exams, and instead this type of participation in a wellness program must be genuinely voluntary, beginning in 2019 (instead of 2021)!
What could happen next? The EEOC could appeal. Or it could decide not to appeal and go forward with the new rulemaking as order and planned – though in the opinion, the Court “strongly encouraged” the EEOC to speed up its schedule for the new rulemaking. Another risk to watch out for is that the business lobby could push to move HR 1313, the Foxx-Byrne bill that would straightforwardly gut the ADA’s and GINA’s protections against coercive wellness programs.
Great news, let’s hope it sticks.
One small step for wellness… – Dr. Jon
Amazing. You called this one.
I think it’s a bit early to celebrate. Although the EEOC rules were vacated, the HIPAA rules that permit up to a 30 percent health insurance premium surcharge for non-participation in wellness programs are still in place. Vacating the EEOC rules simply returns us to a state in which employers and their lawyers have to figure out how to comply with HIPAA, ADA and GINA at the same time.
The vacatur is timed to coincide with a data when new rules go into place. However, in case you’re right, the same solution as we are proposing today sill works.