Development: The Equal Employment Opportunity Commission (EEOC) recently filed two lawsuits against employers alleging violations of the Americans with Disabilities Act (ADA) based on the employers’ wellness programs. In the first lawsuit, EEOC v. Flambeau Inc., the EEOC alleged that Flambeau Inc. canceled an employee’s health insurance and shifted all of the premium payments to him when he failed to take a voluntary health assessment and other testing offered through the company’s wellness plan. In the second lawsuit, EEOC v. Honeywell Int’l Inc., the EEOC sought a preliminary injunction that would have prohibited the employer from penalizing employees who refused to participate in biometric testing by taking away the employer’s contributions to the employees’ health savings account and imposing a surcharge on non-participating employees. The court denied the EEOC’s request for preliminary injunctive relief, but the agency continues to investigate the employees’ claims of discrimination based upon the penalties and surcharges.

Impact: The EEOC’s recent charges of ADA violations based upon wellness programs serve as an important reminder that employee participation in wellness programs has to be truly voluntary in order to comply with the ADA. Employers should consider implementing incentives for employee wellness program participation, rather than penalties for non-participation, in order to better position a wellness plan against attack from the EEOC. And while the EEOC’s current focus with respect to wellness programs appears to be the ADA, employers also should keep in mind that wellness programs that request the disclosure of employees’ family medical history may also run afoul of the Genetic Information Nondisclosure Act of 2008, which generally bars employers from requesting or requiring employees’ genetic information, including family medical history.