I’ve talked about wellness programs from time to time here on the blog.  Robin Shea, on her great blog, first brought this up back in August. But since then, there are some new developments from the EEOC that employers should keep an eye out on. 

Today, my colleague Marc Herman joins us for the first time to guest post on the latest and greatest on wellness programs, with a  warning that your wellness program may be more of a liability than a benefit.

“I’m stuck in between a rock and a hard place.”

You’re familiar with that phrase. So how about this one?

“I’m stuck in between participating in a wellness program and having to fork out a fortune on health insurance. . .”

Sure, it doesn’t quite have the same ring to it (check out English-Idioms.com — a real thing — for more), it does convey a relevant message for Connecticut employers––your organization’s wellness program may not pass muster under the Americans with Disabilities Act.

At least according to the EEOC.

This is no small issue.   94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs. Wellness programs have many perceived benefits-–they assist employers in promoting healthier lifestyles which, in turn, leads to healthier, happier, and more efficient employees. (And who said that there is no room for sentimentality in the world of employment?)

But, their advantages aside, wellness programs are being challenged when participants are required to undergo some form of medical examination as a condition of enrollment.

This month and back in August, the EEOC has filed suits against two Wisconsin employers for alleged violations of the Americans with Disabilities Act (ADA).

In both suits, an employer offered its employees a “voluntary” (a poignant word choice) wellness program, that required a medical examination as a condition of participation. Employees that participated in the program received a heavily subsidized health insurance premium; non-participating employees, on the other hand, did not.

According to the EEOC, the employers violated the ADA because employees were subjected to involuntary and arbitrary medical examinations.

The EEOC contends that the biometric testing and health risk assessment constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.

Importantly, under the ADA, employers may conduct truly voluntary medical examinations as part of an employee health program available to all employees.

But, involuntary employee medical examinations are a no go, unless such examination is shown to be “job-related and consistent with business necessity.”

According to EEOC, a wellness program is voluntary as long as an employer neither requires participation nor penalizes non participation. In these cases, the EEOC suggests that incentivizing participation is merely a euphemism for punishing non participation, and is thus a violation of the ADA.

What’s the Takeaway for Employers?

It’s still too early to see whether the EEOC’s position will find support in the courts. The EEOC has overreached on some issues this year such as the challenge to CVS’s standard severance agreement.

But these suits should remind employers that wellness programs must truly be voluntary to succeed.  As we go into open enrollment season, it’s a good time to take a look at the language you use to promote these wellness programs.  Your experienced legal counsel is certainly a good option to help on this too.