1. The project that is getting a lot of publicity is a Notice of Proposed Rulemaking that is scheduled for June of 2014. That's next week (or maybe in the next several weeks). The proposed regulation would contain the EEOC's formal position on wellness programs--the arrangements that, typically, incentivize or penalize an employee who does things or fails to do things that are thought to be tied to whether he or she improves a health condition or maintains good health. As we know, a lot of health plans contain wellness program provisions.
2. The reason that we need guidance from the EEOC is that a lot of laws (specifically, HIPAA, GINA and the Americans with Disabilities Act, or ADA) affect how we design wellness programs, but the EEOC, which administers the ADA, has never formally ruled on the programs. Instead, it has made its very restrictive position on the programs known through correspondence that it releases (ranging from internal correspondence and manuals to letters directed to specific employers) and through speeches. So, while we know exactly how to design a program to satisfy HIPAA and GINA, we don't know how to satisfy the ADA and have a pretty good idea that the EEOC wouldn't agree that the same approach used to satisfy those other laws would satisfy the ADA.
3. So, it's good that we're getting guidance, right? Well, the first reason that I'd say "no" is that I don't expect the EEOC to be very friendly. The agency's view of wellness programs has gotten snagged on the ADA's concepts of "voluntariness" and "disability" (which, to be fair to the EEOC, are key concepts in the ADA that aren't part of the considerations under HIPAA and GINA); I don't expect the EEOC to change its views, which have been consistent since at least the 1990s.
4. The other reason that I'm not optimistic is that the real dispute with the EEOC should be about whether voluntariness even matters if the program is part of a health plan (which, for most employers, it is). In that case, the program should pass muster under the ADA bona fide plan exception. But the section cited in the regulatory agenda is the one that governs when employers can require "medical examinations or inquiries." If that's the scope of the regulation, it's not going to get into the plan exception, which is in another section of the law. I don't find that surprising, as the EEOC has fought application of the bona fide plan exception in litigation involving wellness programs.
My bottom line is that I don't think the regulation will give us the road map we need for our programs. But, it's a necessary step in getting there, as it will help frame the issues and arguments for eventual resolution. And, it sure beats regulating by correspondence and speeches.