Are Employer Wellness Programs Discriminatory

Are Employer Wellness Programs Discriminatory

The goal of employer wellness programs is to encourage employees to become and remain healthier. Wellness programs are actually very popular. In fact, nearly half of all employers with 50 or more employees have put these types of programs in place. However, there are some concerns that these programs may be discriminatory, especially for individuals with disabilities.

How employer wellness programs work

Typically, the goal of these programs is to motivate employees to improve their health through exercise and lifestyle-modification programs aimed at better diets, smoking cessation, etc. There are two ways employers encourage employees to participate in these programs: either by offering financial incentives or by imposing penalties. Incentives can include discounts on employer health insurance, while penalties may include requiring employees to pay 100% of health care premiums. In some extreme cases, employees who refuse to participate in wellness programs are terminated.

The EEOC is challenging employer wellness programs as discriminatory

The Equal Employment Opportunity Commission (EEOC) has taken issue with the use of employer wellness programs, particularly with those programs that do not seem to be strictly voluntary. The EEOC filed a lawsuit recently against Orion Energy Systems, charging that the company violated the Americans with Disabilities Act (ADA), when it required its employees to submit to medical exams as part of its wellness program. The problem is, the medical exams were not at all job-related, and any employee who objected, was terminated.

Voluntary wellness programs are fine

There is no dispute that an employer can offer a wellness program, as long as it is voluntary. Such programs can be positive for employees, which in turn creates healthier, more productive employees – a clear benefit for the company. However, the programs must be 100% voluntary. Participation cannot be compelled by threatening huge penalties for poor performance in the programs or termination for refusal to participate. As the EEOC stated, "[h]aving 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."

ADA violations alleged by the EEOC

One of the limitations imposed by the ADA is the requirement of physical examinations or medical inquiries by employers, unless participation is voluntary, the information is kept confidential, and not used to discriminate.

According to the EEOC, in the case against Orion Energy Systems, the wellness program at issue made disability-related medical questions. When one of Orion's employees refused to participate in the program, the responsibility for the health insurance premiums was shifted entirely to the employee, who was later terminated.

The basis of the EEOC's claims against Orion

The EEOC's position in the case against Orion is that the wellness program violated the ADA because it interfered with the employee's exercise of her federally protected right not to be subjected to unlawful medical exams and disability-related inquiries. Furthermore, the EEOC asserts that Orion retaliated against the employee because she objected to the wellness program and refused to participate.

If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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