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Last year, we wrote about recent challenges by the EEOC to the lawfulness of company wellness programs under the Americans with Disabilities Act. One of the cases highlighted in that discussion was a lawsuit brought in the Western District of Wisconsin against Flambeau Inc. District Judge Barbara Crabb ended the calendar year with a decision that should be celebrated by employers in concluding that Flambeau’s wellness program did not violate the ADA.

Flambeau offered its employees health insurance and in 2010 established a wellness program for those employees who enrolled in its health insurance plan.

The wellness program had two components—a health risk assessment and a biometric test. The health risk assessment required each participant to complete a questionnaire about his or her medical history, diet, mental and social health and job satisfaction. The biometric test was similar to a routine physical examination: among other things, it involved height and weight measurements, a blood pressure test and a blood draw.

At first, Flambeau offered a financial incentive to participate in the wellness program. Later, it eliminated that incentive and instead made the wellness program a requirement to participate in health insurance plan benefits.

The question for the court was whether Flambeau’s wellness program was a violation of the ADA, which provides that a “covered entity shall not require a medical examination . . . unless such examination is shown to be job-related and consistent with business necessity.” Flambeau successfully argued that its wellness program was protected by the ADA’s “safe harbor” provision for insurance benefit plans. The safe harbor provision establishes that the ADA “shall not be construed to prohibit or restrict” an employer from establishing or administering “the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks.”

The court highlighted that Flambeau’s wellness program was tied to its health insurance plan in finding that the safe harbor provision applied. Thus, it is important for employers with a wellness program, or that are considering adding a wellness program, that it is not “a stand-alone wellness program unrelated to the administration of insurance risks.” A wellness program should be tied to the employer’s health insurance plan to take advantage of the safe harbor provision and not violate the ADA prohibition against medical examinations.

This case is probably not the final word on the issue of wellness programs and the ADA. The EEOC very likely will appeal this decision to the Seventh Circuit Court of Appeals, and other cases with similar issues are currently pending. Check back here for updates and developments on this topic.

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