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

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The commission announced this week it had filed a second lawsuitchallenging a corporate wellness program design based on the EEOC'sinterpretation of the ADA. The target of this suit: Flambeau, Inc.,a Baraboo, Wisconsin-based plastics manufacturing company employing1,600 people.

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

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

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

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

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

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“These alleged actions and severe consequences for not providingprohibited information as part of its ‘wellness program’ violateTitle I of the ADA, which prohibits disability discrimination inemployment, including making disability-related inquiries,” thecommission said.

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In August, the EEOC sued Manitowoc, Wisconsin-based Orion EnergySystems for similar violations of the ADA contained in thecompany’s wellness plan design. Employees were required to undergotesting and assessments or face consequences, the commissionsaid.

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

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“Employers certainly may have voluntary wellness programs —there’s no dispute about that — and many see such programs as apositive development,” said John Hendrickson, regional attorney forthe EEOC Chicago district. “But they have actually to be voluntary.They can’t compel participation in medical tests or questions thatare not job-related and consistent with business necessity bycanceling coverage or imposing enormous penalties such as shifting100 percent of the premium cost onto the back of the employee whochooses not to participate. Having to choose betweencomplying 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.”

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Read: Rethinking wellnessincentives

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Dan Cook

Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.