By Anne-Marie L. Storey, Esq.
While wellness programs have many undisputed benefits to both employer and employee, there are potential legal risks to such programs. Among these risks is whether participation is truly voluntary and whether the required health assessment and testing constitutes unlawful disability related inquiries and medical examinations in violation of the ADA.
The EEOC has recently filed suit against an employer on that very basis. The agency is alleging that the wellness program at issue violates the ADA because the program required that employees submit to biometric testing and a health risk assessment or face cancellation of medical insurance, unspecified “disciplinary action” for failing to attend scheduled testing, and a requirement to pay the full premium in order to retain coverage.
In commenting on the claim, the EEOC stated that while voluntary wellness programs are acceptable, programs that compel participation in medical inquiries and testing with the threat that failure to do so will result in penalties such as cancellation of coverage or shifting of the insurance premium back to the employee is not voluntary and therefore constitutes an unlawful medical inquiry that is not job-related or consistent with business necessity in violation of the ADA.
This is the second suit filed by the EEOC on this basis. We will keep you updated as to any decision or further regulations/guidance from the EEOC on this topic, but in the meantime this is a good reminder to ensure that if you have a wellness program it is correctly administered and truly voluntary.
Anne-Marie Storey | Attorney
The Graham Building | 84 Harlow Street
P.O. Box 1401 | Bangor, Maine 04402-1401
tel: 207.947.4501 | fax: 207.941.9715
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