Court vacates parts of EEOC wellness rules, effective 1/1/19

You snooze, you lose, the court said. (In so many words.)

Remember the AARP v. EEOC case? That's the one in which the AARP challenged the regulations of the Equal Employment Opportunity Commission addressing incentives for participation in employer wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

I've written about the litigation here, here, here, and here. And here is a summary of the EEOC's regulations, which were issued in May 2016.

This past August, the court found that provisions of the regulations were invalid but declined to vacate them. Instead, the court remanded the rules to the EEOC so that the agency could try to fix them. However, as I noted in my August 25 blog post

The Judge hinted that he might ultimately vacate the rules if the EEOC did not act promptly, saying that vacating the rules would not be proper "[a]ssuming that the agency can address the rules' failings in a timely manner . . ." (emphasis added). Judge Bates also said that he was remanding instead of vacating the rules "for the present." (Emphasis added.)


Well, guess what? The court ruled yesterday that the EEOC's proposed timetable is not "timely" enough. According to the court, the EEOC did not intend to issue new proposed regulations until August 2018, did not intend to issue final rules until August 2019, and did not expect the new rules to take effect until early 2021.

Therefore, in yesterday's order, the court granted the AARP's motion to vacate portions of the regulations, but the decision will not take effect until January 1, 2019. The court ordered the EEOC to provide a status report to the court and to the AARP in March 2018. In its opinion, the court said it would "hold EEOC to its intended deadline of August 2018 for the issuance of a notice of proposed rulemaking. . . . But an agency process that will not generate applicable rules until 2021 is unacceptable."

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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