Last month, we wrote that the Equal Employment Opportunity Commission (EEOC) had challenged an employer wellness program that was implemented by Orion Energy Systems. In that case, the EEOC alleged that the employer had violated the Americans with Disabilities Act (ADA) by requiring employees to submit to medical examinations that were not job related or consistent with business necessity. Several days ago, the EEOC challenged Flambeau, Inc.’s wellness program as violating the ADA’s prohibition against mandatory medical examinations. According to the EEOC the wellness program required that employees submit to biometric testing and a health risk assessment. The consequences for failing to agree to these exams were, among other things, the possible cancellation of medical insurance coverage and other potential disciplinary action.
The EEOC alleged in this lawsuit, EEOC v. Flambeau, Inc., Civil Action No. 3:13-cv-00638, which was filed in United States District Court for the Western District of Wisconsin, that when an employee, Dale Arnold, failed to complete the biometric testing and health risk assessment, the employer cancelled his health insurance coverage. Although the EEOC does not disapprove of wellness programs, it asserts that the programs must be voluntary in all respects. Otherwise, they constitute a disability-related inquiry and must, therefore, be related to the job in question and consistent with business necessity.
Flambeau disagreed with the EEOC’s characterization of its program and claimed that it had “adopted a health program that allowed employees to assess their health status and participate in programs to improve their health if they so chose.” Yet, the fact that employees faced repercussions for refusing to undergo the testing in the first place renders the legality of the program questionable under the ADA. The inquiry, and not participating in any health programs proposed as a result of the inquiry, is what may have violated the ADA.