On-going ADA Wellness Saga (article)
The landscape for wellness programs and various laws with which they must comply continue to evolve. Most recently, the Equal Employment Opportunity Commission (EEOC) and Orion Energy Systems have entered into a consent decree, settling its on-going litigation.
As background, Orion Energy Systems’ wellness program required employees to complete a health risk assessment that includes medical history inquiries and baseline blood tests, as well as satisfaction of a fitness component by the use of a range of motion machine. Failure to complete the health risk assessment and fitness component would result in the employee having to pay full cost of health coverage. This brought forth a claim by an affected employee who raised objections to the collection of medical information for non-job related reasons, in addition to paying the full cost of health coverage by refusing to participate in the wellness program. The employee was terminated from employment shortly thereafter, and then filed the complaint with the EEOC (see EEOC Challenges Wellness Program Standards, Benefit Beat, 9/9/2014).
In settling the matter, Orion has agreed to pay $100,000 to the terminated employee. Further, the company agreed to adhere to the EEOC’s rules relating voluntary participation in wellness programs. According to these rules (see Wellness and the ADA – More Guidance Issued, Benefit Beat, 7/7/2016), a wellness program that includes disability-related inquiries or medical examinations (including inquiries or examinations that are part of a health risk assessment) is deemed to be voluntary as long as employees are not required to participate. For employees who elect not to participate in the program, then:
1. Any group health plan coverage or particular benefit packages cannot be denied or limited to the non-participating employees; and
2. The employer is barred from taking any adverse employment action or retaliate against the non-participating employees.
In addition, Orion agreed that it would not engage in any form of employment retaliation against an employee who raises an objection or concern as to whether the wellness program complies with the EEOC’s rules. Orion also agreed to train its management and employees against retaliation and interference, as granted under the ADA, as well as provide additional training for its decision-makers in negotiating or obtaining health benefit coverage or selecting a wellness program.
The EEOC settlement in the Orion Energy Systems matter suggests that wellness programs should comply with the recently issued wellness program regulations, as well as the wellness program rules pursuant to HIPAA and the Affordable Care Act, as applicable.
The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.