Wisconsin Employer Resolves EEOC Case Involving Wellness

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it has resolved its suit against Orion Energy Systems, a Manitowoc, Wisconsin, lighting company, challenging a wellness program under the Americans with Disabilities Act (ADA) and alleging that the employer retaliated against an employee who objected to the program by terminating her.

In its suit, the EEOC contended that Orion instituted a wellness program that unlawfully required medical examinations and made disability-related inquiries. When an 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 said.

The EEOC maintained that Orion’s wellness program violated the ADA as it was applied to Schobert, and that Orion unlawfully retaliated against Schobert because of her good-faith objections to the wellness program. Upon cross-motions for summary judgment, the district court rejected the employer’s argument that the insurance safe-harbor provision in the ADA immunizes wellness plans from ADA scrutiny.

The court concluded that the EEOC’s regulations on the ADA’s safe-harbor provision were within the EEOC’s authority and further held that the safe-harbor provision did not apply even without regard to the new regulations. However, the court found that the wellness plan was lawful because it concluded that the employee’s decision whether to participate was voluntary under that law existing prior to the regulations, which were not applicable in the case.

The court also held that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan and indicated that the case would be set for trial. The consent decree resolved these issues.

Under the consent decree settling the suit, Orion agreed to pay $100,000 to Schobert. The company further agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations. Orion also agreed not to engage in any form of retaliation, including interference or threats, against any employee because he or she has raised objections or concerns as to whether the wellness program complies with the ADA. The company also agreed that it will tell its employees that any concerns about its wellness program should be sent to its human resources department.

Orion also will train its management and employees on the law against retaliation and interference under the ADA. The company will conduct an additional training meeting with its chief executive officer, its chief operating officer, its chief financial officer, its human resource director and all employees responsible for negotiating or obtaining health benefit coverage or selecting a wellness program. This training shall include an explanation of the provisions of this decree and the requirements of the ADA and its regulations as they pertain to wellness programs.

This case should serve as a reminder to all employers of the need to avoid retaliation. Since this court concluded that the regulations were within the authority of the EEOC, it should serve as a reminder to employers to become familiar with these relatively new regulations.

Compliance with wellness plan regulations is complex because of the different laws and agencies involved. The Departments of Health and Human Services, Labor and Treasury have issued regulations under the Health Insurance Portability and Accountability Act and Affordable Care Act that apply when a wellness plan has financial incentives related to the health status of a participant. The EEOC has issued regulations under the ADA that apply when a wellness plan makes disability-related inquiries or involves medical examinations. The EEOC has also issued regulations under the Genetic Information Nondiscrimination Act that apply when the employer or wellness plan obtains genetic information about the employee or a family member.

About John Garner

John Garner has over thirty five years of experience in employee benefits. He specializes in compliance, health care reform, the Health Insurance Portability and Accountability Act (HIPAA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), and the Employee Retirement Income Security Act (ERISA). He helps clients with life, health, and disability benefits, cost containment, flexible benefits, and claim consulting.

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