The EEOC is back at it! This time it has targeted corporate wellness programs and is challenging the legality of such programs under the ADA. The EEOC contends that the biometric testing and health risk assessments are “disability-related inquiries and medical examinations” that are not job-related and consistent with business necessity and, therefore, violate Title I of the ADA. The EEOC is focusing on the voluntary element of employee’s participation in a wellness program. Because while it is permissible for an employer to conduct a truly voluntary medical examination, it is illegal to force an employee to submit to such testing involuntarily, absent some statutory exception for the testing.
The EEOC is arguing that an employee should not have to submit to a medical examination in order to avoid a monetary penalty such as having to pay his full insurance premium or some cancellation fee. Where steep penalties are imposed for failing to participate in the wellness program, the wellness program is arguably involuntary, certainly in the eyes of the EEOC.
Employers should be careful when starting or managing a corporate wellness program. While this area is not settled by any means, these decisions will be an important guide for employers. To be safe, employers should make sure that when an employee elects not to participate in a wellness program they are not punished or penalized.