UPDATE: Here is the link to a January 18th webinar on this topic.

This is a follow-up to the announcement and “back story” of the December 21 wellness decision in AARP vs. EEOC, a decision which could severely curtail incentives and penalties…and which could, to paraphrase the most memorable G-rated words ever spoken by Bill Clinton, end wellness as we know it.

That’s the bad news. The good news is that as you’ll see later, this decision may actually be a windfall for employers with heavily incentivized wellness programs.

Q: What just happened?

AARP just won a very favorable district court ruling against the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). The full decision is here.

Q: How is this different from the previous ruling in AARP v. EEOC?

The original ruling, though in favor of AARP, gave EEOC more than three years to amend its rules to redefine “voluntary” to match the dictionary definition. The new ruling gives one year both for the EEOC to write the rules and for employers to implement the rules, and makes clear what is expected of them. Here  is the key to why this decision should stick:

The government can’t define “voluntary” to include fines of $2000 or more for non-compliance if it also requires a “mandate” — the opposite of a voluntary option — that carries only a $695 penalty for non-compliance.  A voluntary option can’t include remotely as high a penalty for non-compliance as a mandatory requirement, especially in the very same law.

Q: What will remain as of January 2019 that employers can require subject to forfeitures?

It is still OK to offer medical screenings and HRAs (collectively, “medical exams”) OR dangle incentives or fines (collectively “forfeitures”), just as it is today. The difference is that the programs involving required forfeitures can’t also require medical exams, which both the ADA and GINA say can only be “voluntary.” The court ruled that you can’t force employees to undergo “voluntary” exams by dangling or threatening to withhold large sums of money.

So you can still require employee forfeitures up to 30% (50% for smokers), and you can still offer medical exams. You just can’t combine the two. That’s because in order for a wellness program to fall under ADA and GINA in the first place, medical exams must be involved. So, for example, requiring employees to either do screening or do Quizzify is still allowed.

Q: Isn’t this already the “reasonable alternative” language for employees to avoid screening?

No, for two totally distinct reasons. First, those “reasonable alternatives” nonetheless involved medical exams. Second, an employee had to petition. An employee couldn’t just say: “I don’t want to be screened. Give me something else.”

Q: Does this cover screenings only, or are programs combining annual physicals and forfeitures also affected?

A: If the results of the latter are not shared with the employer,  it appears that they may still be require-able. A better question is why an employer would want to require them. First, they lose money.  Second, they don’t appear to benefit employees either. The New England Journal of Medicine, The Journal of the American Medical Association, Choosing Wisely and Consumer Reports (and also Slate) have all looked at the data and concluded that for most people annual physicals confer no net health benefit, meaning even if they were free they would be worthless. (People who have ongoing health issues should of course see their doctor regularly. Those would not be considered checkups under this definition.)

Logically and intuitively, this conclusion would appear to be especially true when employees submit to those physicals under duress. Quizzify — and this question, like most Quizzify questions, carries the Harvard Medical School (HMS) shield — recommends two checkups in one’s twenties, three in one’s thirties, four in one’s forties, five in one’s fifties and for most people annually after that. However, this is also Quizzify’s most edited-out Q&A, as some employers nonetheless want even healthy employees to get physicals every year, and Quizzify respects that choice (though a customized question advocating it could not carry the HMS shield).

Q: These Q&A’s seem very Quizzify-centric.

A: That’s not a question but I’ll answer it anyway. There are two reasons for that:

1. We know of no other vendor that solves the problem and guarantees the solution, with EEOC indemnification. Quizzify was both conceived and architected in anticipation that this court decision would happen someday. (I just didn’t expect it to happen four days before Christmas, which meant a lot of my cousins got gift cards instead of ugly sweaters.)  All my exposes on the wellness industry led me to conclude that conventional “wellness or else” (as Jon Robison calls it) could never survive a court challenge…and I designed a product specifically to allow employers to address that challenge immediately and completely.
2. Those of you familiar with my work know I have only three talents in life: wellness outcomes measurement, employee health literacy/consumerism education, and self-promotion.

Your vendor, Quizzify or not, should offer something like this right on their website. If they do, you’re safe:

Q: What other analyses should we be looking at?

The best is The Incidental Economist. AARP hasn’t released a formal statement but their informal back story can be found at the bottom of this posting.

Q: So what should we do about it?

Simply add the option of taking Quizzify quizzes to the option of HRAs/screenings. That one-step fix is guaranteed and indemnified to solve your legal issues. It will also save money both up front (a year of Quizzify costs much less than a single screening) and down the road, because wiser employees make healthier decisions…and healthier decisions save money. Employees also like playing trivia more than they like being browbeaten into promising to eat more broccoli.

If your vendor refuses to add Quizzify via a “single sign on” and you don’t want to add it separately, you can fire the vendor (we can help you do that — if they show a positive ROI it means their outcomes are fabricated, which we can easily demonstrate) and replace them with one that will, of which there are quite literally more to choose from every week.

Q: What happens next?

A: The EEOC needs to rewrite the rules to comply with this decision by making new rules — and needs to do it in 2018 so that they can be adopted and implemented by employers by January 2019. The definition of “voluntary” will be a line-drawing exercise. Likely gift cards and small incentives will be considered “voluntary.” If your incentive falls within whatever cap they decide upon already, you’re fine, with or without Quizzify.

Q: Is this is last word?

A: No.  First, the final rules have yet to be written, as noted above. The rules then have to be approved by the district court.

Along with that uncertainty are two others. The EEOC could appeal, since these days it tends to oppose employee rights, rather than support them. However, the DC Appellate Circuit, led by Merrick Garland, would likely not be favorably disposed towards arguments that require, for example, defining “involuntary” as “voluntary,”  especially when the Court will know that even award-winning vendors harm employees, vendors flout guidelines and screen the stuffing out of employees and give incorrect advice, creating further harms, and that the industry itself is rife with corruption, starting at the top. (I published my last paper in a medical-legal journal rather than a clinical journal specifically in anticipation that it might be the basis for an amicus curiae brief specifically in a situation like this.)

In an unregulated, employee emptor, environment like this, voluntary fines collected by shareholders from employees wanting to protect themselves from the harms above should not exceed fines set as penalties for a mandate, and paid into a pool to create an insurance product. (That the mandate is going away is not relevant — it’s the fact the government has two words with opposite meanings that have inverse fines.)

Alternatively, an Act of Congress could gut GINA. The American Benefits Council could try to convince the legislators their colleagues contribute heavily to, like Virginia Foxx (R-NC5), to push HR1313, for example.  HR1313 is arguably the worst bill of any type ever to clear a Congressional Committee, in that nobody benefits from it (other than DNA collection vendors, for whom it would be a windfall), but the ABC has already demonstrated their disregard for the best interest of its own members by browbeating Rep. Foxx into proposing that bill in the first place.  The ABC is down, but not out…and as this video shows, being down but not out can cloud one’s judgment.

However, since quite literally none of her constituents are helped by this bill and most of them in both parties detest it, Foxx may decide to disappoint her corporate overlords on this one, especially because it’s an election year.

Q: How is HR1313 (or a bill like it) that ABC might propose on behalf of its members (large employers) not in “the best interest of its own members” as noted above?

A: Many employers have finally figured out that even their own vendors know wellness loses money, and that incentives generally don’t change behavior because employees revert to their old behaviors once the incentive ends.  (Incentives do work for Quizzify-type programs, because as you’ll see for yourself if you take the quiz, once you pay an employee to know things, they can’t un-know them. Pay an employee to learn that CT scans are full of radiation once, and they will stop demanding unnecessary CT scans forever.)

However, employers are stuck with these huge incentives now, which some employees expect annually. This rewrite of the “voluntary” rules, likely capping incentives in the low three figures, will allow employers to spend much less on incentives…and blame the government. (Obviously we hope they maintain the incentives and instead just offer the Quizzify alternative. This will also save money due to Quizzify’s low price and a much-reduced number of employees having to follow up on false positives.)

If ABC were to be successful in gutting GINA and allowing financially coercive wellness programs to continue unabated, employers would still have to fork over large incentives.