In a closely watched case, a federal judge in Wisconsin has denied the EEOC’s challenge to a wellness program maintained by Flambeau, Inc. The EEOC had sued the employer, alleging the wellness program violated the ADA.
The wellness program required employees to complete a health risk assessment and a biometric screening, but employees completing the program didn't just receive a premium reduction or other financial incentive. They were required to complete the program as a condition to obtaining coverage under the employer’s group health plan. Employees that chose not to participate in the wellness program were not allowed to enroll in the employer's health plan.
The EEOC alleged that the wellness program violated the ADA’s prohibition against involuntary medical examinations and disability-related inquires. Although employees were not required to participate in the wellness program, the EEOC viewed the penalty for nonparticipation (loss of access to the group health plan) as too coercive, effectively making the wellness program an involuntary program.
But the court side-stepped the question of voluntariness and concluded that a safe harbor under the ADA (which allows for bona fide underwriting activities) applied to the wellness program. Thus, the program did not violate the ADA without regard to whether it was voluntary.
The court's decision to apply the ADA's underwriting safe harbor is consistent with a 2012 federal appeals court decision (Seff v. Broward County), but the EEOC has indicated it strongly agrees with that interpretation of the ADA. So we might expect further sparring between the EEOC and employers who choose to adopt aggressive wellness programs in reliance on the ADA's underwriting safe harbor.
A copy of the court's opinion in the case is available here.