On August 20, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed suit in Wisconsin federal court challenging an employee wellness program’s legality under the Americans with Disability Act (“ADA”). As noted in a press release, this lawsuit is the EEOC’s first to directly challenge a wellness program under the ADA.
Orion Energy Systems (“Orion”) implemented a wellness program that included health screenings and disability related inquiries. The ADA prohibits medical examinations and inquires unrelated to employment, unless they are voluntary. The EEOC alleges that Orion’s wellness program did not qualify as voluntary under the ADA because one employee who refused to participate was forced to bear the entire cost of her health coverage premium and was ultimately terminated. “Employers certainly may have voluntary wellness programs,” stated John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits on the back of the employee or by just firing the employee who chooses not to participate. 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 not choice at all.”