The EEOC has filed a lawsuit against a Wisconsin employer, alleging that the employer's wellness plan violates the ADA. According to the EEOC's press release (here), this is the first lawsuit by the EEOC directly challenging a wellness program under the ADA.
Background. Although wellness plans are increasingly common, they raise a complex array of legal issues. Regulations addressing compliance with the HIPAA nondiscrimination requirements are well-developed now. But there is virtually no guidance addressing the manner in which the ADA applies to wellness plans. In particular, the ADA prohibits employers from requiring employees to undergo involuntary medical examinations, unless those examinations are clearly job-related, and it has never been clear where the line is on "voluntariness."
Bad Facts. Unfortunately, the facts of this case are bad enough that it may not provide much meaningful guidance. The EEOC's lawsuit alleges that the employer in this case required employees to participate in its wellness program (including what sounds like a fairly typical health questionnaire and biometric screening) and penalized those who refused by requiring them to pay 100% of the cost of coverage under the employer's health plan, plus a $50/month surcharge. Additionally, there is an allegation that the employer then terminated an employee for declining to participate in the wellness program.
Results Not Typical. All of these facts, if true, go well beyond what most typical employer wellness programs require or impose and would seem to be a fairly clear violation of the ADA's voluntariness requirement. So it's not clear how much this case ultimately will tell us about how plans should be designed to comply with the ADA, assuming the case is litigated to a conclusion.
Bottom Line. The bottom line, though, is that the EEOC is taking a clear interest in wellness-plan issues. Whether this case represents the first strike in a new wave of enforcement activity or merely opportunistic case selection remains to be seen. But either way, employers should assume they may be called on some day to defend the voluntariness of their wellness programs under the ADA and will want to proceed with due caution.