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Can Employer Sponsored Wellness Programs Require Medical Testing

Nearly two-thirds of smaller companies, with 199 workers or less, and a vast majority with companies of 200 or more workers have employee workplace "wellness programs." As part of that benefit, employees may earn a discount on gym memberships; have access to weight loss or smoking cessation programs or other informational and healthy lifestyle resources. The mission of these programs is certainly worthwhile; but there are some aspects that may be illegal. The U.S. Equal Employment Opportunity Commission ("EEOC") has filed lawsuits against two (2) companies in late 2014, claiming some wellness programs, which included non-voluntary medical exams and non-job-related lifestyle inquiries, may violate the Americans with Disabilities Act ("ADA").

The first lawsuit is against a company who required employees to participate in medical exams and health inquiries or face penalties. In March 2009, the company instituted a wellness program, requiring participating employees to complete a health risk assessment and submit a blood sample for analysis. The program also included a fitness component under which employees were required to use a range of motion machine in the company's physical fitness room. One worker asked if the health risk assessment was voluntary and was told simply that her results would be kept confidential. The employee was also instructed not to share her concerns about the wellness program with co-workers and to quash any potential "attitude." This employee declined to submit to the exams and was forced to pay the entire premium for her employee health benefits, totaling $413.00 per month and a non-participation penalty of $50.00 per month. She was ultimately fired one (1) month after declining to submit to the testing.

The second company mandated employee participation in similar medical testing or face cancellation of health insurance, additional disciplinary action, and a payment of their full health insurance premium in order to maintain coverage. When an employee refused to participate, the employer cancelled his health insurance, leaving him only with the option of applying for COBRA at his own cost.

The EEOC also stated that wellness programs must be voluntary. The employers cannot compel participation in medical tests or questions that are not job-related and consistent with business necessity. Having to choose between complying with medical exams and inquiries, and getting hit with cancellation or a penalty, is not voluntary and is not really a choice.

Indeed, the EEOC alleges that these purported "voluntary" wellness programs were in fact, not voluntary at all. Any employee who refused to participate was adversely affected by losing his or her employer sponsored health insurance. The EEOC also 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 ADA. Further, the EEOC argues that the alleged actions and severe consequences for not providing prohibited information as part of its wellness program violated Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.

One interesting caveat is that although these cases were filed in 2014, the actions complained of took place in 2009, before the implementation of the Affordable Care Act ("ACA"). The ACA wellness provisions do not address the issue of voluntariness, but they do specifically authorize employers to grant significant economic "rewards" to employees who achieve results (for example, reducing their Body Mass Index) in so-called "health contingent" wellness plans. The EEOC has not yet provided a position on the interplay between the ADA wellness restrictions and the ACA. The EEOC is also planning to issue guidance on what is voluntary in terms of a wellness plan, but suffice it to say, wellness programs cannot impose enormous penalties.

If you have a question about an employer wellness program, contact us at www.BryanKuhnLaw.com/ to discuss your legal rights.

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