A second employer has been sued by the U.S. Equal Employment Opportunity Commission over its employee wellness program. Once again, the EEOC alleges that the company’s penalties for nonparticipation rendered the program involuntary, making it a medical inquiry prohibited by the Americans with Disabilities Act.
The latest case, announced Oct. 1, involved a plastics manufacturer that allegedly required employees to complete a health risk assessment and biometric testing, or face cancellation of health coverage and other “disciplinary action.”
When employee Dale Arnold did not complete the biometric test and HRA, Flambeau, Inc., canceled his coverage and shifted responsibility for the entire premium cost — while employees that did comply kept their coverage and were only required to pay 25 percent of the premium, according to the EEOC’s lawsuit.
The EEOC contends that the biometric testing and HRA constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity, in violation of the ADA.
The EEOC previously sued Orion Energy Systems in August, alleging that an employee of that company was forced to bear the entire cost of her health coverage, and ultimately terminated, for refusing to participate in Orion’s wellness program.
Wellness programs “have to actually be voluntary,” said John Hendrickson, regional attorney for the EEOC’s Chicago district, in announcing the lawsuit against Flambeau. “They can’t compel participation … by cancelling coverage or imposing enormous penalties such as shifting 100 percent of the premium cost onto the back of the employee who chooses not to participate,” he added. “Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all.”
Company Defends Program
Flambeau disputes the EEOC’s allegations, maintaining that its wellness program is legal and beneficial. “Flambeau adopted a health program that allowed employees to assess their health status and participate in programs to improve their health if they so chose,” according to a company statement. “Flambeau strongly denies that it has violated any aspect of the [ADA] and intends to vigorously defend this matter.”
ADA, HIPAA and other wellness program requirements are discussed in the Employer’s Guide to HIPAA.