The EEOC has filed its first lawsuit against a company challenging the company’s incentive program because the penalty it applied for not participating in its wellness program was, in the eyes of the EEOC, so high that participation was not, as a practical matter, “voluntary.”
Under EEOC rules, an employer may conduct medical examinations, which includes obtaining medical histories and blood draws, only in limited situations. One of those permitted situations is a voluntary wellness program. Because the program did not qualify as “voluntary,” the questions employees were asked about their health on a health risk assessment, a blood draw, and a range of motion assessment violated the Americans with Disabilities Act (ADA), according to the EEOC’s Complaint.
This is the first lawsuit brought by the EEOC challenging the incentives of an employer’s wellness program. The situation that created the complaint is a bit unusual, because the employee was terminated shortly after complaining about the wellness program. However, the EEOC also seems disturbed by the terms of the program itself. The program was designed so that the company paid 100% of the health insurance premium for employees who participated in the wellness program and paid nothing toward the premium of any employee who did not participate. The EEOC has described this penalty as “steep” and “enormous.” It remains to be seen whether the court will agree with the EEOC that the penalty violates the ADA rules, but employers considering significant penalties for non-compliance with, or incentives for participating in, a wellness program should understand that their design could lead to an EEOC charge or lawsuit.
The EEOC has stated that is in the process of providing additional rules regarding the use of financial rewards and penalties tied to wellness programs.