Wellness program managers, take note: The U.S. Equal Employment Opportunity Commission is taking a close look at such programs to ensure they meet the tenets of the Americans with Disabilities Act.

The commission announced this week it had filed a second lawsuit challenging a corporate wellness program design based on the EEOC's interpretation of the ADA. The target of this suit: Flambeau, Inc., a Baraboo, Wisconsin-based plastics manufacturing company employing 1,600 people.

The commission challenged the fairness of the program based on a requirement that employees submit to biometric testing and a “health risk assessment” as part of the program, or face what the EEOC called “dire consequences.” These included cancellation of their medical insurance unless the employee paid the full premium, and unspecified disciplinary actions.

The company canceled the health insurance of employee Dale Arnold when he failed to complete the biometric testing and health risk assessment, the commission said. Arnold was told he had to pay the full premium himself.

Meantime, “employees who had taken the biometric testing and health risk assessment ... did not have their coverage canceled involuntarily, and were only required to pay 25 percent of their premium cost. Those conditions violate the ADA,” the EEOC said.

The lawsuit was filed after attempts to settle the case with the company failed, the commission said.

In its suit, the EEOC said that the testing and assessment requirements constituted “disability-related inquiries and medical examinations” that weren’t related to Arnold’s job.

“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,” the commission said.

In August, the EEOC sued Manitowoc, Wisconsin-based Orion Energy Systems for similar violations of the ADA contained in the company’s wellness plan design. Employees were required to undergo testing and assessments or face consequences, the commission said.

“When employee Wendy Schobert declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert. Shortly thereafter, Orion fired Schobert,” the commission said.

“Employers certainly may have voluntary wellness programs — there’s no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district. “But they have actually to be voluntary. They can’t compel participation in medical tests or questions that are not job-related and consistent with business necessity by canceling 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. 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.”

Read: Rethinking wellness incentives

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EEOC reviewing wellness programs for ADA violations

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