To avoidthe legal grey area, wellness vendors are offeringvoluntary alternatives such as health literacy training,distribution of wearables or participation in online healtheducation games. (Photo: Shutterstock)

The U.S. Equal Employment Opportunity Commission's (EEOC)announcement in March that it has no immediateplans to issue new wellness regulations regarding the definitionof “voluntary” might have left employers confused but notpanicked.

“I'm actually seeing people shockingly chill about this wholething, people who were looking for an excuse to cut back on theirscreenings,” says Al Lewis, president of Quizzify, an employeehealth education vendor based in New York City. “I would havethought there would be this massive lobbying campaign by theAmerican Benefits Council. But they've been incredibly quiet aboutthis.”

Instead, the American Benefits Council is focusing its effortson helping employers, saying in a statement, “As the lawssurrounding wellness programs have become mired in legislative,regulatory and legal uncertainty, we are working closely with ouremployer members and agencies like the EEOC to ensure that wellnessprograms advance the goals of a healthier workforce and reducedhealth care costs.”

A federal district court in Washington, D.C. — ruling inDecember in AARP v. EEOC — nullified the EEOC's rules forhow employer wellness programs could be offered in compliance withthe Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act(GINA). Beginning Jan. 1, 2019, companies may no longer assesspenalties (some that triple what an employee pays for healthinsurance) to employees who decline to participate in wellnessquestionnaires and exams.

Related: 6 common legal pitfalls for wellnessprograms

The EEOC previously proposed waiting at least three years forputting new rules in place, a motion U.S. District Court Judge JohnD. Bates and the American Association of Retired Persons bothrejected.

On March 30, the EEOC announced it “does not currently have plans toissue a Notice of Proposed Rulemaking addressing incentives forparticipation in employee wellness programs by a [specific] date …, but it also has not ruled out the possibility that it may issuesuch a Notice in the future.”

Where does that leave employers who are looking ahead to 2019and beyond?

“It is possible that there will be no clear resolution of thisdispute in time for employers to plan their 2019 benefits andwellness strategy,” according to Parker, Smith & Feek, aBellevue, Washington-based insurance brokerage and employeebenefits firm. “In that case, employers will need to make adecision. Should they continue with current programs, consideringthe risk of EEOC enforcement or private legal action, or shouldaffected employers come up with a plan B?”

Plan B should include employer indemnification options,according to Lewis, who adds that it's unclear whether safe harborprotection will be removed from 2019 premium differentials based on2018 screenings, or only based on 2019 screenings and healthreimbursement accounts.

“The question is–and nobody knows the answer to thisquestion–will Jan. 1, 2019, be the day you can no longer forceemployees into screenings?” Lewis says. “Or is it the day you canno longer collect penalties for involuntary screenings done in2018?”

Lewis recently sought a legal opinion on this issue fromJonathan Zimmerman, an attorney at Morgan, Lewis & Bockius inWashington, D.C. Zimmerman's take is that, “absent guidance fromEEOC (which itself would not be binding on the courts), it's notknowable whether 2019 premium differentials caused by refusal to bescreened in 2018 could survive employee legal challenge. Therefore,it is important to create a path for employees this year thatallows them to achieve their full 'points' total without medicalexams or inquiries.”

“The best solution is to bring your in-house counsel in and sayhere is one attorney's opinion; should we act on this attorney'sopinion?” Lewis suggests. “Keep in mind that there will be nodownside to acting on this opinion.”

To that end, Quizzify and several other vendors are offeringvoluntary alternatives that don't involve medical inquiries ormedical exams—such as health literacy training, distribution ofFitbits or similar wearables or participation in online healtheducation games.

According to Quizzify's website, doing so “makes screenings/HRAstruly voluntary, and removes your program from EEOC jurisdiction.We indemnify you (or if you are a vendor, your customers) for anyadverse judgments on cases brought by employees claiming that yourwellness program includes 'involuntary medical exams or inquiries'as defined under ADA or GINA.”

“At the very worst, you save money, because screening costs alot,” Lewis says. “And if you can have an alternative to screeningthat's more effective than screening, why not do it?”

A recent study of 3,300 employees of theUniversity of Illinois at Urbana-Champaign were given a year ofaccess to a common workplace wellness program, while a controlgroup of 1,534 employees did not receive access. Those offered theprogram were randomly split into six groups and each paid differentincentives (from $50 to $350) for completing each step of theprogram. The researchers found the greatest participation ratesamong employees who already had some degree of health conscious,and that even with an incentive, employees' behavior remainedlargely unchanged.

Other studies have revealed similar results. Participants in aworkplace weight-reduction program at Rand Corp., for example, lost an average ofsingle pound by the second year of participation.

Such reports might explain why the EEOC appears not to have maderevising its regulations a priority.

“We may go back to the EEOC Enforcement Guidance days when allthe guidance we had from the EEOC about the meaning of 'voluntary'was that incentives could not 'require participation nor penalizeemployees who do not participate,'” predicts Barbara J. Zabawa, anattorney who founded the Center for Health and Wellness Law inMcFarland, Wis., writing for the Shortlister blog. “For many of those who workin workplace wellness, that guidance was not very helpful, It iscertainly possible that many employers may choose to forgoincentives when offering health risk assessments or biometricscreens. Employers may believe that the uncertain legal landscapeof incentives are not worth the headache. But I have heard too manyprofessionals attest that incentives work for their organization.As a result, incentives may not disappear entirely.”

This is uncharted territory for employers, which is why HealthCheck360, one provider ofperformance-based wellness solutions, suggests employers “continueto be compliant with the existing regulatory environment” andmonitor developments.