New EEOC Rulemaking Delay
The EEOC had intended to establish its “Notice of Proposed Rulemaking” (NPRM) this coming January. That schedule would have put them on track to declare new rules governing clinical wellness programs in early 2020. Last week they announced that the NPRM will not take place until June. This may possibly delay the actual declaration of rules to mid-2020 or beyond. An NPRM requires a quorum. With the possible departure of Commissioner Chai Feldblum, the EEOC might not have a quorum, since two positions remain unfilled. (It is likely but not definite that nominees for those positions will be confirmed during the Senate’s upcoming lame duck session.)
This announcement extends the period in which clinical wellness programs are not covered by the current “safe harbor” to at least a year, increasing the likelihood of employee litigation. (Recent employee actions against wellness programs include the West Virginia teachers strike, which was extended until the wellness program was terminated.)
Overscreening for Ovarian Cancer
Ellen Pompeo of Grey's Anatomy urged women to get screened for ovarian cancer. However, her advice that “all it takes is a simple ultrasound,” is incorrect, according to the American Cancer Society. Ovarian cancer screening has a “D” recommendation from USPSTF because the rate and consequences of false positives overwhelm the positive predictive value of screening.
Many wellness vendors recommend screening for ovarian cancer even while acknowledging it is “notoriously difficult to detect in its early phases.” However, the medical professionals who warn against Ellen Pompeo's advice support the US Preventive Services Task Force (USPSTF) recommendation not to — for exactly the same reason.
Women at high risk, such as those with a family history, should talk to their doctors about a possible test; absent that specific reason, employee screening should not be done.
Summary of Obesity Myths
Medscape published a commentary: “Dispelling the Myths about Obesity.” To summarize, many professionals do not understand the current science of obesity, and the current science of obesity itself is controversial and in flux. Weight-loss incentives, penalties, and contests should perhaps be re-considered in light of the science summarized in this article. You may decide that the tangible and intangible costs, and potential for stigmatizing heavy employees, exceed the benefits of those activities.
30-second shameless Quizzify plug: We address all these issues. We will indemnify employer wellness programs, creating a de facto “safe harbor” for your program. We educate employees on appropriate screening, which (for most women) does not include ovarian cancer screening, and we recommend that employees be educated on dietary composition— especially recognizing and avoiding hidden sugars, which are increasingly believed to be the biggest food hazard Americans face.
Missed the previous roundup? Here it is.