Wellness or Else?

Over the last couple years, the Equal Employment Opportunity Commission has been on a litigious rampage against wellness programs. The latest on its list of failed challenges: Plastics manufacturer Flambeau. At the beginning of January, a Wisconsin District Court sided with Flambeau by ruling that its wellness program, which mandated that an employee complete a health risk assessment and biometric screening to be eligible for the company health plan, was, in fact, voluntary and in line with ADA provisions.

While the EEOC argued that the wellness requirements constituted non-job-related, medical exams and questions, Flambeau’s program found refuge under the ADA’s “safe harbor” protections. U.S. District Judge Crabb ruled that the program was voluntary because despite the mandatory nature of the HRA and biometric screenings, they were only conditions for employees to voluntarily receive the insurance offered by Flambeau. Employees weren’t at risk of losing their jobs if they didn’t participate in the wellness program or the employer-sponsored health plan. Moreover, the ADA permits these kinds of examinations and inquiries when they are terms of a bona fide health benefit plan and are tied to “underwriting risks, classifying risks, or administering such risks.” (The company used aggregated data from the tests, not individual data.)

The EEOC has clearly staked out its position on employer wellness programs, but the victories have lined up for employers. This decision, alongside last year’s ruling in favor of Honeywell and a 2011 ruling in favor of Broward County, ought to reassure employers that similar wellness programs should be cleared as legally compliant. The EEOC is still deliberating its proposed rules, which have been in bureaucratic limbo for the better part of a year, but this ruling may re-shape their final guidance. While employers should be buoyed by the results of the Flambeau case, they should, of course, continue to pay heed to wellness program design, whether the programs are stand-alone or part of insurance coverage.

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