Last spring, the U.S. Equal Employment Opportunity Commission (EEOC) gave a preliminary nod to limited incentives to promote participation in wellness programs, promising future guidance, which is still in process. This was a welcome development, but somewhat tempered by a pending wellness suit filed by EEOC challenging whether mandatory wellness participation violated the Americans with Disabilities Act (ADA).

The EEOC legal challenge was filed against Flambeau, Inc., a Wisconsin plastics manufacturer that required employees to participate in its wellness program to be eligible for the company’s health insurance coverage. The EEOC stepped in after an employee’s insurance was cancelled for non-participation in mandatory program components. The wellness program required employees to participate in health risk assessments (HRAs) and biometric screenings, requirements that the EEOC said were in violation of the ADA.

In What’s On the Horizon for Employer-Sponsored Wellness Programs and the EEOC in 2016?
Jennifer Hall of Baker Donelson offers background on the case and the employer’s defense:

“On July 15, 2015, Flambeau filed a motion with the district court requesting that the court dismiss the EEOC’s lawsuit. Specifically, the company claimed that the biometric screening and health risk assessment were protected under the “safe harbor” provisions of the ADA; i.e., they were terms of a bona fide health benefit plan based upon “underwriting risks, classifying risks or administrating such risks.” Additionally, the company claimed that the wellness program was voluntary. “Employees were entirely free to choose whether to obtain benefits from the company, enroll in health insurance from a different source or forgo insurance altogether,” and employees who did not have employer-sponsored health insurance were not required to complete the screening or assessment. Furthermore, those who declined the employer-sponsored health insurance remained employed.”

On December 30, 2015, a Wisconsin District Court judge ruled in favor of Flambeau, finding that the employer was protected under the ADA’s safe harbor provision.

In Judge rules in Flambeau’s favor in EEOC case, Shelby Livingston of Plastics News notes that:

“The ruling is the second safe harbor win for a wellness program. The other case, Seff v. Broward County, Florida, was ruled on by the U.S. District Court in Miami in April 2011 and affirmed by the 11th U.S. Circuit Court of Appeals in Atlanta in August 2012.”

While this case is likely to be appealed, it is a promising development for employer-sponsored wellness programs.

Additional Resources

For more on wellness incentives, see our series of whitepapers.

See additional coverage of the recent EEOC v. Flambeau, Inc. ruling from employment law experts:


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