As insurance premiums rise, and more companies self-insure, “wellness programs” have emerged to merge the interests of employees in being well and employers in keeping them well and away from the medical establishment.  A vast majority of large companies have, in fact, instituted wellness programs.

They may take the form of weight loss tips and weigh-in competitions, in-office fitness, exercise or yoga programs, “healthy choice” breakfast events to teach about cholesterol or diabetes or processed food, or things like subsidies to join health clubs.

These programs may seem selfless, and/or they may seem calculating – but in any event they serve an indisputably beneficial purpose and are win-win programs.

But – and this is a big but — they must be voluntary and must not violate the law.

How, you may ask, can an employee wellness program, designed to keep employees healthy, violate the law?  And what law?

Well, for starters, think about the Americans with Disabilities Act, the “ADA.”  It prevents employers, among many other things, from inquiring of employees about health or disability issues.  Starting to see where problems can arise?  (Don’t even mention the Genetic Information Nondiscrimination Act – “GINA”!).

A new EEOC lawsuit (the EEOC’s second such suit) illustrates how an employer can get into trouble with wellness programs.  The EEOC sued a Wisconsin manufacturer which “required an employee to submit to biometric testing and a ‘health risk assessment,’ or face cancellation of medical insurance, unspecified ‘disciplinary action’ for failing to attend the scheduled testing, and a requirement to pay the full premium in order to stay covered.”

When the employee did not complete the biometric testing and health risk assessment, the company cancelled his medical insurance and made him pay the entire insurance premium. On the other hand, the employees who completed these tasks were not subject to this “penalty.”

The complaint contends that these requirements were “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity, defenses under the ADA.  “These alleged actions and severe consequences for not providing prohibited information as part of its ‘wellness program’ violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.”

An EEOC attorney noted that:  “Employers certainly may have voluntary wellness programs – there’s no dispute about that – and many see such programs as a positive development.  But they have actually to be voluntary. They can’t compel participation in medical tests or questions that are not job-related and consistent with business necessity by cancelling coverage or imposing enormous penalties such as shifting 100 percent of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all.”

This is only the tip of the wellness program lawsuit iceberg, we predict.  So employers who rightly start wellness programs would be prudent to dust off their employee manuals, revise them as necessary, keep training managers, and LEARN ABOUT THE VARIOUS ANTI-DISCRIMINATION LAWS.

These would be healthy endeavors!