Three federal agencies have issued guidance concerning challenges to wellness programs that include tobacco surcharges added to group health plan premiums. The Equal Employment Opportunity Commission (EEOC) has updated its strategic plan for fiscal years 2026 through 2030. The Department of Homeland Security has proposed a rule increasing the H-1B visa petition fee to $103,265. The Congress has passed a continuing resolution funding the government through December 11.

Guidance Issued on Health Contingent Wellness Programs — The Departments of Labor, Health and Human Services and Treasury issued guidance concerning questions raised in lawsuits challenging tobacco surcharges that some employers add to premiums for group health plans through wellness programs. Daniel Aronowitz, Assistant Secretary for Employee Benefits Security stated, “This guidance makes clear to sponsors and issuers that, as long as they are offering reasonably designed, and otherwise non-discriminatory wellness programs, they will not be penalized for wanting to help motivate the people they cover to make efforts to improve their health.”

Regulations issued in 2006 divided wellness programs into participatory wellness programs and health-contingent wellness programs. Participatory wellness programs are those in which none of the conditions for obtaining a reward are based on satisfying a standard related to a health factor or one in which no reward is offered. By contrast, to receive a reward under a participatory wellness program one needs to satisfy a standard related to a health factor such as not smoking.

The guidance clarifies that enforcement action will not be taken against a plan or issuer for not providing a reward for achieving a reasonable standard under a health contingent wellness program retroactive to the beginning of the plan year if the reward is provided after the standard is satisfied. The issuing departments advised that the “exercise of enforcement discretion does not change the requirement that any wellness program must be reasonably designed, based on all the relevant facts and circumstances, to promote health or prevent disease, and that plans and issuers must ensure that the program is not a subterfuge for discrimination or underwriting based on a health factor, or any of the other requirements for wellness programs.” All plan materials must inform of the availability of a reasonable alternative standard to qualify for the reward including for health contingent wellness programs along with the contact information for obtaining a reasonable alternative standard and informing participants that the recommendations of personal physicians will be accommodated.

Strategic Plan Updated by EEOC — The Equal Employment Opportunity Commission (EEOC) has approved an updated strategic plan for fiscal years 2026–2030. EEOC Chair Andrea Lucas stated, “The updated Strategic Plan reflects the agency’s unwavering commitment to evenhanded enforcement of our nation’s equal employment opportunity laws and to serving the public with excellence, integrity, and accountability.” According to the EEOC, the strategic plan reflects its commitment to equal employment opportunity, accountability, and integrity, the three values that guide the culture and work of the commission.

The strategic plan contains the following three goals:

• Combat and prevent employment discrimination through application of the EEOC’s law enforcement authorities to prevent and remedy employment discrimination while providing relief for victims of discrimination.
• Provide outreach and training to prevent employment discrimination and advance equal employment opportunities. This goal envisions making the public aware of discrimination laws, the rights and responsibilities contained in these laws, and educating the public about how to file discrimination charges. Additionally, ensure that employers, federal agencies, unions, and staffing agencies have the information needed to ensure equal employment opportunity for workers and prevent and remedy discriminatory practices.
• Strive for organizational excellence through its people, practices, and technology by sustaining a workforce that is high-performing and aligning resources, technology, and operations to improve performance and service delivery.

DHS Proposes Increase in H-1B Visa Fee — The Department of Homeland Security (DHS) has proposed a rule establishing a fee of $103,265 for H-1B visa petitions. The proposed fee would be paid at the time the petition is filed and would be in addition to any other applicable fees. The proposed fee is designed to generate revenue to recover part of the cost the government incurs administering the immigration system. DHS estimates that the proposed fee would generate about $8.8 billion per year based on the receipt of 85,000 H-1B visa petitions. Zach Kaler, U.S. Citizenship and Immigration Services spokesperson stated, “The proposed H-1B fee is intended to recover the costs incurred across the federal government to adjudicate, vet, and support lawful immigration programs that otherwise must be funded by taxpayers.” The extra fee would not apply to H-1B visa petitions that are not subject to the annual cap and would include petitions filed by some nonprofit research organizations, governmental research organizations, and institutions of higher education. Comments on the proposed rule are due by September 24.

The Administration announced previously that the H1-B visa petition fee would increase to $100,000. The previous increased fee was the subject of litigation, with the U.S. Court of Appeals for the First Circuit recently denying a motion for a stay of a decision by the U.S. District Court for the District of Massachusetts. The District Court found that the increased fee was an unlawful tax and an improper use of executive power. There were other cases filed challenging the earlier fee increase to $100,000 and one case upholding the fee is currently pending before the U.S. Court of Appeals for the District of Columbia Circuit.

House Passes Continuing Resolution Funding the Federal Government — The Congress has returned from its summer recess, and the House of Representatives passed a continuing resolution funding the government through December 11. The Senate had passed the bill previously and President Trump is expected to sign it. The continuing resolution will avoid a partial government shutdown that would have occurred on October 1, the start of the federal fiscal year. None of the required 12 appropriations bills have been passed by both the House of Representatives and the Senate. Since the last time Congress passed all 12 appropriations bills on time was prior to the 1997 fiscal year, no one should be surprised that a continuing resolution was needed again this year.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at [email protected].