In recent months, the Equal Employment Opportunity Commission (EEOC) has filed lawsuits against two US companies for the manner in which they administered and executed employee wellness programs. According to research conducted by the Kaiser Family Foundation, the majority of employers now offer some sort of wellness program - 94 percent of employers with more than 200 workers, and 63 percent of smaller ones.
In October, the EEOC filed suit against Flambeau, Inc. The EEOC cited the company’s wellness program required that employees submit to biometric testing and a health risk assessment. Employees who did not participate would face cancellation of medical insurance, unspecified disciplinary action for failing to attend the scheduled testing and be required to pay 100 percent of the insurance premium to stay insured. Employees who completed the biometric testing and health risk assessment were only responsible for the payment of 25 percent of their premium cost.
In its argument, the EEOC contends that the biometric testing and health risk assessment constituted "disability-related inquiries and medical examinations" that were not job-related or consistent with business necessity as defined by the Americans With Disabilities Act (ADA). Specifically, the EEOC cited a violation of Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.
In August, the EEOC filed its first lawsuit on wellness programs against Orion Energy Systems. In that case, the employee’s insurance was cancelled after failure to complete the required biometric testing and shortly after the employee was fired.
In the argument, John Hendrickson, regional attorney for the EEOC Chicago district, shared:
Employers certainly may have voluntary wellness programs -- there's no dispute about that -- and many see such programs as a positive development. But they have to actually be voluntary. They can't compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate. Having to choose between responding to medical exams and inquiries -- which are not job-related -- in a wellness program, on the one hand, or being fired, on the other hand, is no choice at all.
For clubs with current wellness programs, it is advisable to ensure that the programs that you are offering are voluntary and do not penalize employees who do not or unable to participate.