EEOC Challenges Employer’s Wellness Program

The EEOC charges in a lawsuit that Orion Energy Systems, based in Manitowoc, Wisconsin, violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a so-called “wellness program,” which was not voluntary, and then by firing the employee when she objected to the program. The agency contends that when employee Wendy Schobert declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert. Shortly thereafter, Orion fired Schobert.  

The EEOC maintains that Orion’s wellness program violated the ADA as it was applied to Schobert, and that Orion retaliated against Schobert because of her good-faith objections to the wellness program. The EEOC further asserts that Orion interfered with Schobert’s exercise of her federally protected right to not be subjected to unlawful medical exams and disability-related inquiries. 

In 2009, as employer interest in wellness programs was increasing, the EEOC asserted in an “informal discussion letter” that undergoing a health risk assessment as a prerequisite for coverage “does not appear to be job-related and consistent with business necessity, and therefore would violate the ADA.” The letter said that even if the health assessment could be considered part of a wellness program, the effort would not be voluntary, because workers choosing not to participate in the assessment are denied a benefit compared to employees who participate. 

“Employers certainly may have voluntary wellness programs—there’s no dispute about that—and many see such programs as a positive development,” says John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing enormous penalties, such as shifting 100% of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate.” 

Last year, a panel of experts told the EEOC guidance is needed for employer wellness programs so employers can avoid violations of federal equal employment opportunity law. 

The EEOC’s complaint is here.