We have the two lawsuits against the U.S. Department of Labor challenging the overtime rule that is scheduled to take effect on December 1 (argument in those cases will be heard November 16), the lawsuit that resulted this week in a preliminary injunction against the "Fair Pay and Safe Workplaces" rule that would have required some federal contractors to (in the words of the plaintiffs and the judge) "publicly condemn themselves," and the lawsuit this past summer that resulted in the preliminary injunction blocking the U.S. Department of Labor "Persuader Rule" (now on appeal).
But the AARP suit against the EEOC is the first one in a while that is a challenge from employee, rather than employer, advocates. The AARP essentially accuses the EEOC of not doing enough to protect employees' privacy rights.
What the lawsuit is about
The AARP is challenging the rules issued by the EEOC in May of this year that apply to wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. Here is a copy of the lawsuit. And here are the motion asking the court to enjoin the rule from taking effect, and the AARP's brief.
Very generally, the EEOC rules issued in May provide that employers can offer "inducements" (rewards for participation, or penalties for non-participation) to get employees and their spouses to disclose personal health information or submit to medical examinations in connection with wellness programs.
To be lawful, the inducements have to be within limits that are roughly, although not exactly, consistent with the limit of 30 percent of self-only coverage set forth in the Health Insurance Portability and Accountability Act and the Affordable Care Act.
It's pretty clear that in its wellness rules the EEOC was trying to reconcile the ADA and GINA — both of which sharply restrict employers' ability to get medical information from employees or their family members — with the more or less "pro-wellness" approach taken in the HIPAA/ACA.
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