EEOC Files Second Lawsuit Challenging an Employer Wellness Program

NBCH thanks the American Benefits Council for the information provided in this post.
 
On October 1, the U.S. Equal Employment Opportunity Commission (EEOC) announced a lawsuit challenging a wellness plan sponsored by a Flambeau, Inc. (a Wisconsin-based manufacturer with 1,600 employees) as violating the Americans with Disabilities Act (ADA). The EEOC lawsuit in EEOC v. Flambeau, Inc. alleges that the company's wellness plan required employees to complete biometric testing and a health risk assessment (HRA) on a day appointed by the employer. The complaint further alleges that an employee, who was on medical leave on the appointed day, did not complete the HRA or biometric testing, and was denied by the employer when they tried to complete the required HRA and biometric testing subsequently. The employee's health insurance was allegedly terminated for failure to complete the wellness requirements and the employee was informed that he could apply for "medical insurance" and pay the entire COBRA premium rate.

The EEOC's suit, filed in the U.S. District Court for the Western District of Wisconsin, argues that 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 Title I the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.

This is the second lawsuit filed by the EEOC in recent months (and its Chicago District Office, specifically) challenging a wellness program under the ADA. In August, the agency filed suit against Orion Energy Systems, alleging that the company fired an employee (after first making her responsible for her entire health insurance premium) when she would not submit to a medical exam and inquiry related to a wellness program. That lawsuit involves a participation-based wellness program requiring the completion of an HRA. The employee who declined to complete the HRA was permitted to enroll in the health plan, but was required to pay the full cost of the coverage ($413 per month for employee-only coverage). The employee objected to the penalty and allegedly was fired for not participating in the wellness program. The EEOC is alleging that this wellness program is not "voluntary" and thus violates the ADA. EEOC v. Orion Energy Systems was filed in the U.S. District Court for the Eastern District of Wisconsin.

The EEOC announced in its most recent semi-annual regulatory agenda that it intends to issue regulations later this year addressing wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA).