The first direct federal challenge to an employee wellness program’s legality under the Americans with Disabilities Act was filed Aug. 20 by the U.S. Equal Employment Opportunity Commission.
The employer’s program did not qualify as “voluntary” under the ADA because the one employee who refused to participate was forced to bear the entire cost of her health coverage and was ultimately terminated, the EEOC alleged in EEOC v. Orion Energy Systems, No. 1:14-cv-01019 (E.D. Wis.).
“Employers certainly may have voluntary wellness programs … but they have to actually be voluntary,” said John Hendrickson, regional attorney for the EEOC’s Chicago district, in announcing the lawsuit. “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.”
Factual Allegations
In 2009, Orion Energy Systems implemented a wellness program that included a health risk assessment, blood work and a “fitness component” involving a Range of Motion Machine. One employee, Wendy Schobert, “objected to participation in the wellness program,” according to the EEOC complaint. “Specifically, she questioned whether the [HRA] was voluntary and whether medical information obtained in connection with it was going to be maintained as confidential.” Management then allegedly warned her to stop voicing such objections.
Schobert declined to participate in the wellness program, signing a form to opt out of the HRA. “If Schobert had agreed to participate in the so-called ‘voluntary’ wellness program, Orion would have covered the entire amount of Schobert’s health care costs,” the EEOC alleged. “Because Schobert declined participation, she was required to pay the entire premium cost” of more than $400 per month, plus a $50 monthly penalty for not participating in the fitness component.
Schobert was terminated shortly thereafter, and the EEOC alleged it was because she objected to, and declined to participate in, Orion’s wellness program. She then filed a complaint with the EEOC.
Legal Claims
The ADA generally prohibits employers from making medical examinations and inquiries of current employees, subject to certain exceptions including “voluntary wellness programs.” However, because Orion’s program was involuntary, the HRA and bloodwork violated the ban on medical exams and inquiries, the EEOC alleged.
The EEOC’s complaint also claims that Orion’s firing of Schobert violated the ADA’s anti-retaliation provision, and that management’s alleged attempts to silence her violated the act’s separate prohibition on “interference, coercion and intimidation” against the exercise of ADA rights. The EEOC is seeking injunctions, back pay and compensatory and punitive damages against the company.
Orion officials could not be reached immediately for comment.
ADA, HIPAA and other wellness program requirements are discussed in the Employer’s Guide to HIPAA.