Can My Employer Make Me Participate In Wellness Plan Under ADA?

• Employers Can’t Mandate Participation In Wellness Programs

The EEOC recently challenged an employer’s wellness program, alleging the program violates the Americans with Disabilities Act (ADA). In EEOC v. Orion Energy Systems, No. 1:14-cv-0109 (E.D. Wis. 2014), the EEOC claims Orion Energy Systems violated the ADA by requiring an employee to submit to medical exams unrelated to the job and inconsistent with business necessity as part of a “wellness program”. The EEOC has taken the position that although employers are permitted to implement wellness programs, employers cannot mandate employees to participate. This is especially true when the employer’s wellness program asks employees to disclose medical information about themselves.

• The Facts Of The Case

In 2009, Orion Energy Systems implemented a mandatory wellness program which required employees to complete a health risk assessment. The health risk assessments required employees to disclose their personal medical histories and have blood work performed. The wellness program also included a fitness component which required employees to use a Range of Motion Machine in Orion Energy System’s physical fitness room. The plaintiff, Wendy Shobert, refused to participate in Orion Energy System’s wellness program because she was concerned about the confidentiality of her medical information. Consequently, Orion Energy System required Ms. Shobert to pay the full premium cost of her health insurance and a $50.00 monthly penalty. Shortly thereafter, Ms. Shobert was terminated.

Ms. Shobert felt she had been wrongfully terminated and filed a charge of discrimination with the EEOC. Ms. Shobert claimed she was terminated for refusing to participate in Orion Energy System’s wellness program in violation of the ADA. The EEOC agreed with Ms. Shobert and filed a complaint against Orion Energy Systems on her behalf.

• The EEOC’s Position

The EEOC understands employer wellness programs can improve employees’ health and productivity. However, the EEOC found that Orion Energy System’s mandatory wellness program violated the ADA. Specifically, Orion Energy System’s wellness program contained certain components, such as blood-work, the EEOC argued converted it into a medical exam or inquiry. Because the ADA bans medical examinations except in limited circumstances, the program violated the ADA. Presumably, the employer could have continued providing the program, but not impose a penalty for employees’ refusal to participate.

• What Employers Need to Know

Employers are permitted to have wellness programs but they must be voluntary. Employers cannot compel their employees to participate by punishing or penalizing employees who choose not to participate. According to the EEOC “[h]aving to choose between responding to medical exams and inquiries—which are not job-related—in a wellness program, on the one hand, or being fired, on the other hand, is not choice at all.” A Cincinnati disability discrimination lawyer can explain what is and is not permissible under the ADA.