The Final EEOC Rules: What was answered? What remains unanswered?

One thing our webinar panel of experts in business, law and health policy all agreed upon was that the Equal Opportunity Employment Commission (EEOC) rules issued May 16th on the use of financial incentives in wellness programs arrived from a “long and winding road.” To examine both this journey and the, for now, final destination, I hosted a very smart, opinionated, but diplomatic line up including:

• Jim Pshock, CEO and Founder of Bravo Wellness and effusive and FINALLY ratified fan of LaBron James and the Cleveland Cavaliers.
• Tami Simon, J.D., Managing Director, Knowledge Resource Center, Buck Consultants.
• Jay Keese, Founder and Principal, Capital Advocates
• Glen Nebel, J.D., Advisors Law Group and who provides advise to Enquiron Clients.

HERO members can access the webinar recording and the slides in the HERO Resource Center.

The webinar covered many detailed questions relating to the final rules for implementing Title I of the Americans with Disabilities Act (ADC). These amended regulations, as most employers hoped, better align the EEOC rules with the Affordable Care Act (ACA) wellness provisions. That EEOC guidance still fundamentally relates to caps on insurance differentials and backing of reasonable alternatives leaves countless questions unanswered in an era of wearables and e-monitoring of everything from gratitude to glucose levels.

Incentives versus Inducements

Words matter, especially in drafting public policy and legal briefs. One curious, perhaps telling, change in wording in the final EEOC regulations was the choice of “inducements” versus the usual references to incentives or penalties. The merits of carrots versus sticks have been widely debated, usually inconclusively. But inducements? In my state, we’re credited with being “Minnesota nice,” though I usually demur knowing full well that our good manners can mask our passive aggressiveness. I asked the panel whether the inducement word was thinly veiled antipathy toward the use of incentives or penalties. Diplomats all, they suggested it’s an attempt to find a word that covers both the carrot and the stick. To me, the word inducement connotes a negative tone. It sounds more like brides and coercion than like motivation or reward. I won’t be in any hurry to build inducement into my well-being vocabulary. I’ll also be watching for how others use the term and whether it is intended as a benign replacement for incentives. If I had my druthers, the word “required” would be banished from all communications about attainment-related incentives. When participants fully understand that they are all equally eligible for incentives when they are offered and that they always will have choices relating to how to attain them, then perhaps it won’t matter what such incentives are called.