Employers have been waiting for the EEOC to provide direction with respect to its position on wellness programs and the impact of the ADA on them. Last May, the EEOC held a hearing where it heard from a broad spectrum of interested groups on the topic. In the press release issued after the meeting, the EEOC noted that the speakers indicated guidance was needed to avoid violations of federal law. Acting Associate legal counsel Christopher Kuczynski stated that the ADA allows for employers to ask for medical information in connection with voluntary wellness programs and that the meaning of "voluntary" merited further clarification by the Commission. To date, no official position has come out of the meeting. A recent case filed on August 20 against a Wisconsin employer shows, at least in one case, what the EEOC is thinking. The EEOC filed suit on behalf of an employee who refused to participate in the company's wellness program. The suit seeks to enjoin the continued operation of the program to the extent it requires employees to undergo unlawful medical exams and medical inquiries and to reinstate the terminated employee and make her whole. According to the Complaint, the company began a wellness program in March of 2009. The program included a fitness component where employees were required to use a range of motion machine. The program included a health risk assessment requiring the self-disclosure of medical history and to have blood work performed. The employee questioned whether the program was voluntary and whether the medical information obtained would be kept confidential. The employee was told not to express opinions to coworkers and that the meeting was to address her "attitude" concerning the program. In April of 2009, she declined to participate and thereafter was required to pay the full amount of insurance coverage--$413.43 per month. The company also assessed a $50 penalty per month for her refusal to participate. She was fired in May of 2009 because she objected to and refused to participate in the program according to the Complaint. At this stage of the proceeding, there is nothing that explains what transpired between May of 2009 and the filing of the lawsuit other than the allegation in the Complaint than mediation was attempted in April of 2012 and in August of 2012, the EEOC determined it was unable to resolve the matter by informal means and so advised the company. In the press release announcing the filing of the suit, the regional attorney for the Chicago office is quoted as stating that wellness programs have to be voluntary. Imposing penalties such as shifting 100% of the premium cost to the employee or firing an employee who chooses not to participate makes the program involuntary. According to the regional attorney, 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. So, this is the EEOC's first suit challenging a wellness program. It appears that the position of the EEOC will be developed through litigation and potential settlements. Employers should start reviewing their wellness programs to see how it compares to the program subject to litigation. The shifting of the entire cost of coverage for non-participation to the non-participating employee negates the voluntary aspect of the plan...at least that is the current legal position.
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