The U.S. Equal Employment Opportunity Commission lost a fight in court over workplace wellnessrules but there are still questions lingering over asolution—particularly given the Trump administration’s new leadership at the agency could shiftintentions.

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In August, a federal judge in Washington sided with the AARP in a lawsuit that challenged rules thatwould allow employers to incentivize or penalize employees forprograms targeted at improving health. Such programs have becomeincreasingly popular at companies because a healthy workforce canlower insurance costs.

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In an unusual move, the judge did not vacate the wellness rules,but rather gave the agency the chance to redo them. This left openquestions about how long it would take for the agency to recraftthe rules. The EEOC and the AARP have spent weeks now arguing backand forth about the best approach.

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The agency argues that vacating the rules entirely would leavecompanies scrambling and 170,000 enrollment guides would have to betossed out. The AARP argues that any delay essentially allows therules—which the court said would allow employers to illegallyaccess private health information and violate federaldiscrimination laws—to be in place for years.

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A recent report from the agencysuggested one plan that would create new regulations by October2019, and those rules would be implemented in 2021.

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U.S. District Judge John Bates of the District of Columbiarefused to outright vacate the EEOC’s rules, saying that such amove would be “disruptive” to companies. The AARP has suggested itwould be possible for companies to comply with new regulations by2018.

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In the backdrop of this debate is the new makeup of the EEOC.Two likely new EEOC members—chair nominee Janet Dhillon, formergeneral counsel to Burlington Stores Inc., and Daniel Gade, aformer Iraq veteran—will shift the majority of the commission toRepublican control. Dhillon and Gade appeared last week in the U.S.Senate for their confirmation hearings.

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The AARP’s Dara Smith points out in her brief to thecourt, “The EEOC identifies several factors each of which mayvery well extend the length of the rulemaking process beyond thistentative schedule: the commission’s changing composition, thepossibility of a stay pending appeal, and other necessaryadministrative processes.”

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The EEOC’s proposal, according to the AARP’s court filing onThursday, would “permit employers to violate workers’ civil rightsfor at least three more years. While the agency surely needs timeto complete a new rulemaking, employees and their families must notsuffer the consequences in the interim,” Smith wrote.

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The EEOC, represented by the U.S. Justice Department in thelawsuit, acknowledged last week that the agency’s “intentions couldchange” amid new leadership.

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