EEOC Files Another Challenge of Employer Wellness Program Under ADA

Author: Gloria Ju

October 8, 2014

The Equal Employment Opportunity Commission (EEOC) has filed a complaint against an employer alleging violations of the Americans with Disabilities Act (ADA) because of the employer's practice of requiring an employee to submit to medical testing and assessment in connection with a wellness program or else face severe consequences. The lawsuit, EEOC v. Flambeau, Inc., is the EEOC's second to directly challenge a wellness program under the ADA.

The EEOC claims that the wellness program required employees to submit to biometric testing and a health risk assessment, or else face the following:

  • Cancellation of their medical insurance;
  • Unspecified disciplinary action for failing to attend the scheduled testing; and
  • Required full premium payment in order to stay covered under the plan.

The EEOC filed suit on behalf of an employee who did not complete the biometric testing and health risk assessment, resulting in the employer cancelling his medical insurance and shifting responsibility for payment of the entire premium cost to the employee. By comparison, employees who had taken the biometric testing and health risk assessment did not have their coverage cancelled involuntarily and were only required to pay 25 percent of their premium cost.

The biometric testing and health risk assessment constituted disability-related inquiries and medical examinations that were not job-related and consistent with business necessity as defined by the ADA, according to the EEOC.

"Employers certainly may have voluntary wellness programs - there's no dispute about that - and many see such programs as a positive development," said John Hendrickson, regional attorney for the EEOC Chicago district. "But they [actually have] to be voluntary. They can't compel participation in medical tests or questions that are not job-related and consistent with business necessity by cancelling coverage or imposing enormous penalties such as shifting 100 percent of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all."

The EEOC filed suit after conciliation efforts failed.