## Facts

- AARP sued the EEOC on behalf of members participating in employer-sponsored health plans offering workplace wellness programs.
- Many wellness programs conditioned rewards or penalties on employees (and sometimes spouses) completing health risk assessments, answering disability-related questions, undergoing medical exams, or providing information tied to genetic data.
- The ADA and GINA generally restrict disability-related inquiries/medical exams and requests for genetic information, but allow exceptions for “voluntary” wellness programs.
- In 2016, the EEOC issued ADA and GINA regulations treating wellness programs as “voluntary” even when incentives or penalties reached up to 30% of the total cost of self-only coverage, tracking a 30% figure permitted for certain wellness incentives under HIPAA/ACA provisions.
- AARP alleged that incentives or penalties of this magnitude could coerce participation and disclosure of protected medical or genetic information, especially for individuals with limited incomes.
- AARP challenged the 2016 rules under the Administrative Procedure Act (APA) as contrary to law and arbitrary and capricious.
- The parties filed cross-motions for summary judgment after the court previously denied preliminary injunctive relief.

## Issues

1. Whether the EEOC acted arbitrarily and capriciously under the APA by selecting a 30% incentive/penalty threshold to define “voluntary” participation under the ADA and GINA without a reasoned explanation.
2. Whether the 2016 ADA and GINA wellness-program incentive provisions were consistent with the statutes’ requirement that participation be “voluntary.”

## Decision

- The court granted AARP’s motion for summary judgment and denied the EEOC’s motion to dismiss/for summary judgment.
- The court held the EEOC’s 30% incentive/penalty standard for “voluntary” participation under the ADA and GINA was arbitrary and capricious under the APA.
- The court remanded the challenged rules to the EEOC for reconsideration and further explanation.
- As a remedy in this decision, the court declined to vacate the rules immediately, citing disruption concerns and the risk of leaving employers without regulatory guidance.

## Legal Principles

- Under the APA, an agency must examine relevant material and provide a reasoned explanation that connects the record to the policy choice; conclusory justifications are insufficient.
- Cross-referencing another statutory scheme’s numeric limit does not, by itself, justify treating that limit as satisfying a different statute’s qualitative standard (here, “voluntary” participation for disclosures protected by the ADA and GINA).
- An agency must meaningfully address significant comments and concerns raised during rulemaking, including claims that a policy choice could be coercive.
- When changing course from earlier guidance, an agency must acknowledge the shift and provide good reasons for the new approach.
- Remand without vacatur may be appropriate where immediate vacatur would cause substantial disruption and the regulatory gap would create uncertainty, even if the rule is found deficient.

## Conclusion

The court ruled that the EEOC failed to justify, with reasoned analysis grounded in the record, why allowing wellness-program incentives or penalties up to 30% of self-only coverage cost preserves “voluntary” participation under the ADA and GINA; it therefore remanded the rules to the agency without immediate vacatur.


AARP v. U.S. Equal Emp. Opportunity Comm'n, 267 F. Supp. 3d 14 (D.D.C. 2017)