Little more than a month ago, we reported to you about the U.S. Equal Employment Opportunity Commission’s (EEOC’s) first lawsuit against a Wisconsin employer concerning its wellness program. On October 1, the EEOC announced a second lawsuit against another Wisconsin employer. EEOC v. Flambeau, Inc. (W.D.WI, filed October 1, 2014). Based on the report, the agency’s concerns about the program are similar to those in the first case – when employees are made to face “dire consequences” for not participating in certain aspects of an employer’s wellness program that constitute a medical inquiry, the EEOC believes the program violates the Americans with Disabilities Act’s (ADA) prohibitions against certain medical inquiries. In short, the EEOC considers such inquires to be involuntary.
In this case, the wellness program featured biometric testing and a “health risk assessment” – common features in many programs. However, according to the EEOC, if employees did not submit to the testing or complete the assessment, they would face “cancellation of medical insurance, unspecified “disciplinary action” for failing to attend the scheduled testing, and a requirement to pay the full premium in order to stay covered”. More specifics on the program and the case are described in our Disability, Leave & Health Management Blog.
The regional attorney for the EEOC’s Chicago district, John Hendrickson, acknowledges that “employers certainly may have voluntary wellness programs – there’s no dispute about that – and many see such programs as a positive development.” But, he warns, they have to be voluntary. In addition to EEOC concerns about voluntariness, employers need to consider how the Affordable Care Act may apply, if at all, to the wellness program they want to implement.