In December, Judge Bates’ ruling in AARP v. EEOC (all the background is here) required the first progress report on the drafting of new incentive/penalty rules to be issued in March. We predicted there wouldn’t be any progress to report, and we were right.
A more passive-aggressive response from EEOC, submitted an hour before the deadline no less, could scarcely be imagined:
[We do] not currently have plans to issue a notice of proposed rulemaking addressing incentives for participation in employee wellness programs by a particular date certain, but [we] also have not ruled out the possibility that [we] may issue such a notice in the future.
They also noted that the top two positions at the agency remain unfilled, with nominees awaiting Senate confirmation, which makes major policy-making difficult.
The EEOC also said, according to the article linked above, that they haven’t decided whether “to float a new rule or leave its regulations as they are.”
Imagine if you are Judge Bates and you’ve told the EEOC to deep-six their old regulations. Three months later the EEOC comes back and says: “Maybe we will and maybe we won’t.” Either the EEOC didn’t run this by an attorney before they sent it out, or they are deliberately trying to antagonize the judge. Either way, they aren’t doing themselves or the wellness industry any favors.
Meanwhile, the folks at Quizzify, having completed their celebration of the pending demise of punitive “wellness or else” programs, have moved onto drafting a new HRA that will be, uniquely, compatible with the new rules, but still be NCQA-accreditable. And most importantly actually not be full of nonsense, like most of the others.
An announcement should be forthcoming within a month. Ping them if you’d like the early bird price on this.