On Dec. 30, 2015, Judge Barbara Crabb from the U. S. District Court for the Western District of Wisconsin issued a decision in EEOC v. Flambeau, Inc., a case that clarifies employers’ rights under the Americans with Disabilities Act (ADA) to utilize workplace wellness programs. With employee wellness programs gaining popularity, this decision offers some much-needed guidance as to how this provision applies to the programs and what program features are essential in ensuring employers maintain compliance with the ADA.
Key Language in the ADA
2 U.S.C. § 12112(d)(4)(A) generally prohibits employers from requiring a medical examination or making inquiries as to the existence, nature or severity of a disability unless doing so is job-related and consistent with business necessity. There is, however, an exception to this rule that allows employers to conduct voluntary medical exams that are a part of a workplace health program.
Section 12201(c)(2) of the ADA also outlines a safe harbor provision that allows employers to engage in activities to establish the “terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks."
The Employer’s Wellness Program
, the employer offered its employees the ability to participate in its self-funded, self-insured insurance plan. Participation was voluntary, and employees were not required to join as a condition of their employment. To be eligible for the insurance plan, however, employees were required to participate in a wellness program, which was comprised of a health risk assessment (including a questionnaire about diet, medical history, etc.), and a biometric test, which was similar to a routine physical exam. With the exception of information about tobacco use, the information associated with individual employees was not used; only aggregate information from all participating employees was used to identify any common health risks and allowed the employer to estimate the cost of insurance, set premiums and adjust co-pays. An employee who lost his coverage due to non-completion of the wellness program requirements sued his employer, claiming that the requirements violated the prohibition in the ADA on mandatory medical exams. The employer, however, maintained that these requirements were terms of the plan, thereby bringing the plan and its prerequisites within the safe harbor provision. Read more...