Are wellness plan incentives a threat to employee privacy or a necessary component of employee health?

That’s the question under scrutiny as the AARP pushes forward with its suit alleging that the Equal Employment Opportunity Commission trampled on employee privacy rights when it released rules for wellness plan incentives.

Now, employer groups are pushing back against the AARP, claiming it doesn’t understand how wellness plans work because incentives are only that — a bit of encouragement to participate, but not an ultimatum.

The scuffle officially went live in late October when AARP sued the EEOC over its revised wellness plan rules. Employers and insurance companies have been quick to shoot holes in the AARP’s case.

Both those parties believe wellness plan participation leads to an overall improvement in the health of the workforce. But many studies have indicated that employees need incentives to participate. And, as incentives have increased in number and value, employers have essentially become dependent upon them to drive participation.

However, the Employee Retirement Income Security Act Industry Committee, an employer lobbying arm, supports the EEOC rules and says AARP is off base in its criticism.

The committee’s senior vice president, James Gelfand, told The New York Times that AARP claims that employers are gathering individual health data and misusing it are completely groundless.

“There’s no evidence of these things happening,” he says.

The Times article cites an earlier court ruling that supported the EEOC’s position, noting that regardless of the value of an incentive, it is still not a requirement of the job to participate in wellness programming. Employees, at the end of the day, get to decide whether to participate and trigger the incentive, or not.

There’s more at stake here than employee privacy and wellness participation, employer representatives say. The EEOC rules are closely aligned with the Affordable Care Act’s guidelines for wellness programs. Employers have finally begun to fully integrate the ACA and the EEOC guidelines into their human resources playbooks. An AARP victory in court would set that process back several years, robbing employers of the consistency in HR practices they have met with lately.

Such a ruling, blocking the EEOC rules, “would really throw a monkey wrench into the works” at this stage, Garrett Fenton, a lawyer with Miller & Chevalier in Washington, told Bloomberg BNA.

And with the sea change taking place in Washington, employers really don’t need another monkey wrench tossed their way right now.

Instant Insights /

Employers, insurers hit back at AARP over wellness incentives suit

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