Yet, though the EEOC's proposed rules provide more clarity on what kind of screening is admissible for employees, the agency has left a number of issues at stake in the Honeywell case unresolved, such as wellness screening for family members.
"The EEOC in this regulation ... has expressly ruled out for the time being saying anything about whether you can include family members in one of these required health risk assessments programs in exchange for a discount on the family rate," said Fischer.
One of the issues the EEOC has raised for debate is the impact of pricey discounts on lower-wage workers. Is a wellness screening still voluntary, when not participating would mean losing out on thousands of dollars?
"That will add a layer of complexity for employers, because how do you determine what's a low income?" said Joseph Lazzarotti, an employment law attorney with Jackson Lewis. "It just becomes a numbers game."
The numbers can add up, when it comes to the extent of discounts allowed under the ACA. Honeywell offered employees a $500 annual premium discount and $1,500 in health savings account contributions for undergoing medical tests, and a $1,000 annual discount for nonsmokers. The EEOC complaint charges the company with effectively penalizing those who opt out.
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Yet, under Obamacare, employers face pressure to bring down the cost of employee health premiums. In 2018, the so-called Cadillac tax kicks in on high-cost health insurance plans. The law lets companies offer wellness incentives valued at up to a 30 percent of plan premiums, and up to a 50 percent discount to nonsmokers.
"I think employers would be best served if the final (EEOC regulation) tracks the bipartisan provisions that were in the ACA," explained Katy Spangler, senior vice president for health policy at the American Benefits Council, "particularly as they look to change their benefit design in anticipation of the 40 percent excise tax on high-cost plans, they need the maximum amount of flexibility."
The new EEOC proposal is open for public comments through June 19, with final rules expected later this year.