Although the U.S. Equal Employment Opportunity Commission (EEOC) released rules allowing employers to assess penalties against workers who decline to participate in their health insurance-connected wellness programs, enforcement is in question until the transition between current President Obama and President-elect Donald Trump is complete.

“My sense is that the EEOC will be taking a very different position under the new administration compared to that of President Obama,” said Henry Talavera, an attorney with Polsinelli in Dallas, Texas. “The new regulations will still become final, but it will be interesting to see how and whether they will be enforced. We recommend compliance with the EEOC rules pending further developments, which I believe should be forthcoming soon.”

More than two-thirds of employers offer wellness programs as part of a benefits package, according to a report from the Society for Human Resource Management, and employees who refuse to participate in their employer’s wellness plan could face a penalty of up to 30 percent of the total cost of their health premium for an individual health insurance plan and up to 60 percent for employees on a spousal plan.

“It might not be a big deal to a worker who earns $150,000 dollars a year, but it’s devastating for someone whose salary is $20,000, $30,000 or even $60,000 a year and they have to pay 30 percent or 60 percent of the total health premium because of a spousal plan,” said Brian Joseph Markovitz, an attorney with Joseph, Greenwald & Laake in Maryland.

One-fourth of health-care costs incurred by working adults are attributed to changeable health risks, such as tobacco use, diet and lack of exercise, according to the Institute for HealthCare Consumerism, and wellness programs are emerging as a way to inspire a healthier lifestyle among workers. They often include exercise, weight loss and quitting smoking classes or competitions.

“Insurance companies with employees enrolled in a wellness program could see it as very beneficially and it could motivate insurers to grant companies a lower rate for health insurance premiums because workers who are active with exercise are less likely to have health problems,” Markovitz told Financial Advisor magazine.

But employers who craft their wellness programs in a way that deducts from another benefit are not adhering to the spirit or purpose of wellness, according to Estelle Morrison, vice president of clinical and wellness services with LifeWorks, an employee assistance program in Minneapolis.

“These programs need to come from a place of improving overall employee well-being, not saving money on health premiums,” Morrison told Financial Advisor. “The savings should be a reward for participation, not the main focus.”

An incentive is considered some form of benefit or payment to workers, such as a $500 bonus for exercising three times a week.

“The 30 percent is actually the complete opposite of an incentive because an incentive would be paying workers a $500 bonus to exercise, as an example,” said Markovitz. “But in this case, the EEOC is allowing employers to take something away from you, which really is the definition of a penalty.”

The rules also require employees to hand over medical and genetic information during enrollment through questionnaires and assessments.

“If you don't participate in corporate wellness programs, you won't have to turn over any medical information, but then if you don't participate, you’ll pay a fine,” Markovitz said.

Health assessments and questionnaires could potentially violate rights to medical privacy and increase the risk of discrimination based on pre-existing medical conditions, for example.

“It's troubling, even without regard to the EEOC, that an employer could condition any participation in a group health plan on an employee’s participation in a wellness program, for example, completely bar participation in a medical plan if a biometric screening is not completed,” Talavera said.

Although it appears innocent to participate in wellness programs that might require workers to exercise daily, the danger is the potential for employers to use the wellness plan to identify and terminate workers who might increase the company’s health-care costs and get rid of them.

“Biometric screenings are generally impermissible and so are blood tests as a condition of participation in a health plan, but since that wasn't clear and it was uncertain if the EEOC had any ability to regulate this issue, the government proposed these new rules in response to adverse rulings in at least one court case,” Talavera said.