ADA lawsuit challenges employer wellness program

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Wellness program challenged

The Equal Employment Opportunity Commission filed a lawsuit against Orion Energy Systems on August 20, the federal agency’s first to directly challenge an employer wellness program under the Americans with Disabilities Act.

As described in the lawsuit, the Wisconsin-based company requires employees to submit to health risk assessments, as part of a program to incentivize employees to improve their fitness and reduce the company’s health care costs. In April 2009, Wendy Schobert refused to undergo the assessment, questioning whether the program was voluntary and whether the information would be kept confidential.

After raising these concerns, Orion’s personnel director and supervisor allegedly held a meeting with Schobert, where they told her not to express any opinions about the program to her co-workers and to quash any potential “attitude” issues relating to it, according to the lawsuit.

In response, Orion, which previously covered her entire health care costs, shifted the entire premium cost to Schobert. Shortly thereafter, it terminated her employment.

Schobert filed a complaint with the EEOC, which attempted to negotiate with the company, beginning in 2012, prior to filing the lawsuit.

“Employers certainly may have voluntary wellness programs — there’s no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district, in a news release. “But they have to actually be voluntary…Having 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 no choice at all.”

The EEOC argues that the ADA prohibited Orion from forcing Schobert to submit to medical examinations or inquiries into her disability status, on the grounds that they were not job related or consistent with business necessity.

In addition, the EEOC alleges that Orion violated the ADA by retaliating against Schobert for her good-faith objections to the wellness program. The lawsuit was filed in the U.S. District Court for the Eastern District of Wisconsin.

According to the Kaiser Family Foundation, 94 percent of employers with more than 30 workers have wellness program, and 63 percent of smaller ones.