EEOC Challenges Wellness Programs

The Equal Employment Opportunity Commission (EEOC) has filed two lawsuits against employers arguing that the employer wellness programs violate the Americans with Disabilities Act (ADA). 

Each employer had established a HIPAA-compliant wellness program. In one case, an employee who participated in a health risk assessment received a stipend to reduce the cost of health plan coverage. If an employee did not complete the health risk assessment, the employee was not eligible for a reduction in the cost of coverage, and was subject to an additional nonparticipation penalty. When an employee refused to answer the risk assessment questions, she was allegedly terminated. 

In another case, an employer offered a wellness program that included a health risk assessment and biometric screening. An employee did not complete the risk assessment/screening because the employee was out on leave. The employer allegedly terminated his employment due to the nonparticipation. 

The ADA provides that employers can only require employees to submit to medical questions that are job related and consistent with business necessity. There is an exception for a voluntary wellness program. 

In both cases, the EEOC argued that the wellness program was not voluntary due to the consequences of nonparticipation and therefore violated the ADA. Employers should be advised to review all wellness programs and consider the structure of rewards or penalties for non-participation.

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