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Workplace Well-Being And The EEOC

On August 22, 2017-- more than 2 1/2 years ago-- the United States District Court for the District of Columbia ruled that the Employee Equal Opportunity Commission ("EEOC") had not provided a "reasoned explanation" for its decision to promulgate regulations under the Americans with Disabilities Act ("ADA") and the Genetic Information Nondiscrimination Act ("GINA"), setting particular incentive levels for providing certain medical data for healthcare providers.

The EEOC's new broadly-stated Rules-- for which it failed to provide a "reasoned explanation"-- allowed employer-sponsored to offer employees discounts of up to 30% of the cost of self-only health coverage for divulging certain private medical information, or to impose up to a 30% for failing to do so (AARP v. Equal Employment Opportunity Commission). More than 2 1/2 years later, we're still waiting.

Four months later (December 20 , 2017) the Court issued a Memorandum Opinion, reconsidering its prior ruling that the EEOC's new Rules would be stayed "for the present", and announcing a specific date by which its stay would terminate, and the EEOC would be required to clean up its act-- January 1, 2019. As mentioned above, we're still waiting.

The Court also stated that it would "hold the EEOC to its intended [self-imposed] deadline" of August, 2018 for the issuance of a notice of proposed rulemaking". Notwithstanding the Court's admonition-- it's two-year warning, so to speak-- we're still waiting. I don't know about you, but I think two years is a long time. Even for an agency of the federal government.

In mid-2018, the EEOC made it clear that it had no immediate plans to issue new well-being regulations, but then, in December of that same year it announced, in its regulatory agenda, that it was in fact planning to release new Rules, in January of 2020. More than a year after that announcement, we're still waiting. And with the pressing exigencies of the current public health crisis, I don't see any clarification coming, in the near future. Knock me over with a feather.

So, what now? I guess we all have to assume (which is exactly what employers have been required to do since August of 2017) that the EEOC's dithering will come to an end at some point-- or not. In the meantime we'll just continue flying in the dark. And, maybe, that's all for the best. At least the dark is, for the most part, constant.

I am no longer a practicing attorney, and I was never qualified to offer advice about compliance with governmental policy-- particularly compliance with EEOC regulations. Legal advice aside (which this blog posting is decidedly not), it strikes me that Uncle Sam ought not be messing with workplace well-being-- it's far too important!

As the Rolling Stones put it, "Hey, you, get off of my cloud. Don't hang around 'cause two's a crowd: Off my cloud"!


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