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Court to the Equal Employment Opportunity Commission: “Try Again” on Wellness Rules

In October 2016, the American Association of Retired Persons (AARP) sued the US Equal Employment Opportunity Commission (EEOC) in the US District Court for the District of Columbia seeking an injunction against the latest iteration of wellness program regulations. The final EEOC regulations issued last year offer employers a roadmap for offering employee wellness programs that pass muster as “voluntary” examinations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). In response, AARP argued that the EEOC failed to adequately justify the new rules and abused its regulatory power by reversing course on its long-standing position against wellness programs.

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Developments for Employers that Sponsor Wellness Programs

by Amy Gordon, Susan Nash and Jamie Weyeneth

On April 11, 2011, the U.S. District Court for the Southern District of Florida found in favor of the defendant’s (Broward County) motion for summary judgment in Seff v. Broward County.  The plaintiff, which is made up of a class of present and former employees of Broward County, brought suit against Broward County based on its wellness program (administered by its insurer Coventry) claiming that the $20 charge assessed on each bi-weekly paycheck for each employee who participated in the group health plan and who did not complete the wellness questionnaire and undergo biometric screening violated the Americans with Disabilities Act (ADA).  Broward County maintained that it did not violate the ADA since its actions are covered by the ADA’s safe harbor rules which covers entities involved in insurance plans.  The court agreed with the defendant, Broward County, and held that the wellness program is permissible as it falls within the ADA’s safe harbor provision.

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