Is Your Wellness Program Showing Symptoms of Non-Compliance?
In August, the EEOC effectively ended its silence regarding wellness programs when it filed suit against Wisconsin-based Orion Energy Systems, Inc. According to the EEOC’s complaint, employees who participated in Orion’s program had to undergo a health risk assessment, which included having blood work done and divulging medical history. Participants also had to comply with a fitness component, under which they were required to fill out a questionnaire disclosing additional medical history before using Orion’s range of motion machines.
One of the EEOC’s claims was that the program’s assessment was an unlawful medical examination in violation of the ADA. Under the ADA, this type of information may only be requested by an employer if: (1) it is job related and consistent with business necessity, or (2) if it is requested in connection with a voluntary wellness program. Wait what? You thought this was a voluntary wellness program? Orion did too.
While Orion’s program was technically “voluntary,” employees who did not participate were forced to pay 100% of their health insurance premiums, plus a monthly $50 “penalty” for not complying with the program’s fitness component. By the EEOC’s calculation, that could amount to $453.43 a month. Twist my arm, right? So while employees could technically decline to participate, most could not afford the steep monthly premiums. Therefore, the EEOC alleges, that while the information was being requested in connection with a wellness program, the penalties incurred by non-participating employees effectively made the program involuntary and consequently violated the ADA.
Most employers have focused on HIPAA compliance when designing wellness programs. However, this suit puts employers on alert that wellness programs must now also comply with the ADA’s limits regarding an employer’s ability to conduct medical examinations and make disability-related inquiries unless participation is truly voluntary.
The EEOC’s action has surprised many employers since the EEOC had been relatively silent regarding any guidance on the issue. Luckily, as the suit moves forward, it will likely provide employers with formal guidance regarding the interplay between wellness programs and the ADA.