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In the second case of its kind, the United States District Court Judge Barbara R. Crabb of the United States District Court for the Western District of Wisconsin, held that an employee wellness program did not violate the Americans with Disabilities Civil Rights Act in requiring employees to submit to “non-voluntary” wellness examinations in conjunction with participating in the employer’s “bona fide benefit plan.” EEOC v. Flambeau, Inc., No. 3:14-cv-638 (December 31, 2015).

The ADA generally requires that employer required medical examinations be “voluntary” in order to be lawful. The only exception to this “voluntary” requirement (other than a post-offer, pre-employment medical examination) is a medical exam that is job-related and consistent with business necessity. See 42 U.S.C. §§ 12112(d)(3)&(d)(4)(a).

In Flambeau, however, the company required its employees to submit to a “wellness exam,” which included a health risk assessment and biometric screening in order to be eligible to participate in the company’s group health insurance plan. Such tests included a blood glucose and cholesterol test, and an “online Health Risk Assessment,” which required employees to complete a confidential health questionnaire. The results were used to enable the company to underwrite, classify and administer its health insurance risks more effectively. Importantly, the results of any one individual were kept confidential and not used to exclude anyone from coverage.

The Court, in granting dismissal of the lawsuit in favor of the company, found that such a “wellness examination” fell within the ADA’s safe harbor for such examinations because the examinations were tied to the employer’s health insurance plan. See 42 U.S.C. §12201(c)(2), “Subchapters I through III of this chapter and title IV of this Act shall not be construed to prohibit or restrict….a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.”

Indeed, the Eleventh Circuit in Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012), held likewise in dismissing the plaintiff’s case there.

Employer takeaway

While these two cases are initial victories for employers, their scope of authority does not transcend their respective jurisdictions, and the EEOC in response has set forth proposed rules to further govern this exception which have yet to be finalized. Thus, employers are wise to consult with their employment counsel before embarking on such “wellness” initiatives in conjunction with their sponsored health care plans.
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