EEOC'S First Direct Challenge to an Employer Wellness Program

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The EEOC recently filed a lawsuit against a Wisconsin employer, claiming it violated federal law by requiring an employee to submit to medical exams and inquires that were not job-related and consistent with business necessity as part of a "wellness program" instituted by the employer. The wellness program was not voluntary. The employer fired the employee when she objected to the program.

The particular wellness program at issue required medical examinations and made disability-required inquiries. When the employee declined to participate in the in the program, the employer shifted responsibility for payment of the entire premium for employee health benefits to the employee.

The EEOC asserted that the employer's wellness program violated the Americans with Disabilities Act as it applied to the employee, and that the employer retaliated against the employee because of her good faith objections to the wellness program. Further, the EEOC contended that the employer interfered with the employee's exercise of her federally protected right not to be subjected to unlawful medical examinations and disability-related inquiries. The lawsuit is pending in the U.S. District Court for the Eastern District of Wisconsin.

While employers certainly may institute wellness programs, they must be voluntary. The EEOC has taken the position that employers cannot compel employee participation in wellness programs by imposing "enormous penalties" such as shifting 100% of the premium cost for health benefits to the employee, or by simply terminating an employee who chooses not to participate in the program. According to the EEOC, an employee should not be required to choose between medical examinations and disability inquiries (which are not job related) in a wellness program, or being involuntarily terminated.

Statistics indicate that 94% of employers with over 200 workers, and 63% of smaller ones, offer some sort of wellness program to their employees. While such programs certainly may be beneficial in terms of lowering health care costs and boosting employee morale, all employers need to be aware of the pitfalls associated with instituting such a program. If your business has any questions about an existing wellness program, or instituting one, please feel free to contact one of our employment law attorneys.

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