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A group of screening vendors and their trade associations have drafted a letter to senators in which they reveal their hitherto unpublished level of panic over the December 2018 sunsetting of the EEOC’s safe harbor for incentivized/penalized health risk assessments and biometric screenings.
Their specific words are:
[Note: they offer no support for the assertion that their “programs are improving the health of America’s workforce” and their own outcomes indicate the reverse.]
Their “ask” in this letter is for the Senate to confirm the pending EEOC appointees, including the Chairperson, so that rules can be published by January.
Unfortunately, that isn’t going to happen, for three reasons. First, the EEOC has already announced that it doesn’t plan to issue rules in January to replace the rules vacated in December.
Second, the wellness industry doesn’t understand the way the rule-making process works. It’s a multistep process, laid out by statute, that in the least contentious of circumstances takes many months.
Third, the existence of vacancies on the Commission has created a backlog of issues needing resolution. The only way wellness rises to the top of that list is if there is indeed a “Wild West of Litigation” in early 2019—which is actually quite likely. We at Quizzify are already aware of one aggrieved group of plaintiffs planning a class action.
So what should you do to hold yourselves harmless once the rules sunset? There are two concerns:
Employee lawsuits in your own company. These will be common—especially in outcomes-based programs, owing to their unpopularity. (See page 15 of this report.) Specifically, the Net Promoter Score for wellness is -52, whereas the lowest major industry, cable TV and internet services, scores +2.
Employee lawsuits in other companies. A federal judge’s decision might well affect the landscape—either an entire circuit or the country as a whole. You could be required to give the 2019 premium differential back to employees if your program fits the category of non-voluntary.
Vulnerability may be based on 2019 differentials even if the program itself is undertaken in 2018. As Jonathan Zimmerman of Morgan, Lewis and Bockius put it:
Quizzify Solves Both Problems
Quizzify indemnifies customers against EEOC lawsuits, thus solving the first problem. For the second, Quizzify offers a simply money-back guarantee that no judicial decision anywhere else will affect their premium differential.
We do both using the rules on this one-page flyer, which can be varied to cover health risk assessments in addition to or in lieu of screens. As long as an employee can earn his or her full incentive by playing Quizzify (or by playing Quizzify and doing other non-clinical activities, such as wearing a Fitbit or performing community service), you’ve created your own safe harbor to replace the EEOC’s sunsetting safe harbor. Instituting this program in 2018 will create a safe harbor and a money-back guarantee for 2019.
It’s that simple. We are happy to talk to your in-house counsel about this as well. Contact us now to take next steps.