Employers with incentivized wellness programs should keep a close eye on the Seventh Circuit’s treatment under the Americans with Disabilities Act (ADA) of a plastic-maker’s policy that requires medical exams as part of its voluntary wellness program. Previously, a federal court in Wisconsin ruled that the employer’s policy – which required enrolled employees to answer medical history questions, have blood drawn, and have their blood pressure measured – came within the ADA’s “safe harbor” provision because the employees were not at risk of losing their jobs if they refused.

The EEOC disagrees with this interpretation and has filed a notice that they will appeal the decision to the Seventh Circuit. The agency argues that the ADA bars such medical examinations because they are not job-related, and that the allegedly onerous financial consequences of not taking the tests (paying their own premiums) mean that it is not really “voluntary.” The company counters this argument by stating that employees do not face discharge by not taking the tests and (apart from smoking information), it receives the medical information only in aggregate form, which it uses to help administer the plan and calculate costs. The district court viewed this administrative tie-in as an important point in upholding the policy.

By my recollection, this is the first circuit court to address the hot-button issue of wellness programs and their interaction with the ADA.