AARP Files Suit Seeking Injunction Blocking EEOC Rules on Wellness Plans

Owen H. Laird, Esq.

Earlier this year, The Harman Firm blog covered the Equal Employment Opportunity Commission’s (“EEOC”) notice of proposed rule-making concerning employer “Wellness Plans”;

The EEOC issued these rules governing Wellness Plans in May of this year. The rules permit employers to discount the health insurance cost of Plan participants by up to 30%. However, a recent lawsuit filed by AARP – a lobbying and advocacy organization representing retired and other older Americans – seeks to block the implementation of the EEOC’s rules.

Wellness Plans are employer-promulgated health programs that provide employees benefits or perks for participating in activities aimed at improving or maintaining employee health. The theory is that by improving employees’ health, health insurance can be made less expensive for everyone. These programs became more prevalent after the passage of the Affordable Care Act. Many people support Wellness Plans, and they are often seen as a common sense solution to rising healthcare costs. AARP wants to block these rules because many Wellness Plans require employees to reveal sensitive medical information, potentially disclosing the existence of a disability or other condition.

Part of the EEOC’s mandate is to prevent disability discrimination in the workplace through enforcement and implementation of the Americans with Disabilities Act (“ADA”). The EEOC is involved in determining the permissible scope of employer Wellness Plans because many such Plans contain provisions that could be used to discriminate against employees with disabilities; for example, requiring employees to turn over medical records or undergo a health screening. The EEOC has filed lawsuits against employers that instituted overly invasive Plans, including those that penalize employees for not agreeing to biometric testing on things like blood pressure and cholesterol. Nonetheless, AARP believes that the EEOC’s rules are not stringent enough; AARP is seeking an injunction preventing their implementation.

AARP takes the position that the EEOC’s rules do not go far enough to protect employee privacy and argues that the rules would permit Wellness Plans that violate ADA and the Genetic Information Nondiscrimination Act. Under the EEOC’s rules, employers would still be able to penalize employees who do not participate in Plans or decline to provide information about their medical status. As AARP represents older Americans, many of whom have medical conditions that they do not want disclosed to their employers, their interest is against shifting the burden of health care onto elderly people with medical conditions. Younger or healthier employees might like the idea of reduced health care costs in exchange for providing their medical histories to their employers, but many employees are – rightfully – wary of doing so.

We at The Harman Firm have represented many employees who have faced discrimination for revealing medical conditions to their employers. And while we are in favor of efforts to reduce the cost of health insurance, Wellness Plans that require significant disclosures of medical information not only disproportionately hurt the elderly and disabled, but are likely to lead to further disability discrimination if employers discover that their employees suffer from significant medical conditions.

If you believe that you have been discriminated against at work because of a medical condition, contact The Harman Firm, LLP.