After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought a second lawsuit just six weeks after its first, alleging that the employer’s wellness program was not “voluntary” due to the “dire consequences” to non- participants. Because the program was involuntary, the disability related inquiries and medical examinations within the program violated the ADA, according to the EEOC’s press release about the lawsuit. EEOC v. Flambeau, Inc. (W.D.WI, filed October 1, 2014).

Under the defendant’s wellness program, employees who participated in biometric testing and completed a “health risk assessment” paid 25% of the medical insurance premium while those who declined to participate in the program needed to pay 100% of the premium and faced unspecified discipline for not attending the testing, according to the press release.

In its first wellness lawsuit, the EEOC also alleged that non-participants were required to pay 100% of the insurance premium, a penalty the EEOC described as “steep” and “enormous.” EEOC v. Orion Energy Systems, E.D. WI, filed August 20, 2014). See our post about that case here.

Some 94% of employers with over 200 workers and 63 percent of employers with fewer employees have a wellness program, notes the EEOC’s press release. The EEOC regulations and Interpretive and Enforcement Guidance permit employers to conduct medical examinations as part of a voluntary wellness program. For many years, the EEOC’s position has been that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”  Just last year, the EEOC reiterated that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.” By filing these two lawsuits, the EEOC has taken a very definitive position that any penalty it determines to be “steep,” or “enormous” or have “dire consequences” for non-participants would make an otherwise voluntary program involuntary. Earlier this year, the EEOC said that it plans to issue guidance this year concerning the amount of a reward/penalty allowed for a program to be “voluntary.”