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Dismissal of EEOC wellness lawsuit requested

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Dismissal of EEOC wellness lawsuit requested

Flambeau Inc. has asked a federal judge to dismiss the U.S. Equal Employment Opportunity Commission's lawsuit over the company's use of health risk assessments and biometric screenings in its wellness program.

Attorneys for the Baraboo, Wisconsin-based plastics manufacturer contend that the company's policy of requiring employees to complete health risk assessments and biometric screenings in order to qualify for coverage under its group health insurance plan did not violate the Americans with Disabilities Act as alleged by the EEOC in its October 2014 lawsuit.

In a motion for summary judgment filed July 15 in U.S. District Court in Madison, Wisconsin, Flambeau's attorneys said the assessment and screening requirements were protected under “safe harbor” provisions of the ADA because they were terms of a bona fide health benefit plan and were based on “underwriting risks, classifying risks or administering such risks.”

“Flambeau implemented and then continued the wellness program to mitigate risks and, ultimately, save costs,” the company's attorneys wrote in their motion. “Later, after reviewing insurance claims data reflecting that the majority of the company's benefits costs were generated by a relatively small number of its employees, Flambeau made participation in the wellness program mandatory for participants in the Plan, seeking to increase the program's effectiveness in mitigating risks.”

Additionally, Flambeau and its attorneys argued that the assessments and screenings did not violate ADA rules requiring that employee participation in wellness programs be entirely 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,” the company's motion said. “Flambeau never required employees who chose not to participate in the health plan to take part in the assessment and biometric testing process. Indeed, if an employee who was participating in the plan did not want to complete the HRA or biometric testing, he or she could have voluntarily chosen to stop participating in the plan, but continue as an employee of the company.”

As a result, “Flambeau's employees had complete discretion regarding whether they would submit to the HRA and biometric testing process,” the motion said.

EEOC counters

In a countermotion for summary judgment against Flambeau on the matter of its liability under the ADA, the EEOC argued that requiring employees to complete wellness screenings or activities in order to qualify for health care coverage does not constitute a voluntary program.

“In common understanding, mandatory is the opposite of voluntary, and no employer can in good faith claim its tests and inquiries are both at the same time,” the EEOC argued in its motion. “If additional proof on this point were needed, the dictionary definition of 'mandatory' in this context is 'containing or constituting a command.'”

Earlier this year, the EEOC issued a set of long-awaited proposed rules on the interaction of employer-sponsored wellness programs and the ADA. Among those proposed rules is a provision that would specifically prohibit employers from denying health care coverage to employees that do not participate in health risk assessments, biometric screenings or other wellness-related activities.

But Flambeau attorneys argued in their motion that the rules have not yet been finalized and are therefore not applicable to the agency's lawsuit against the company.

“In all likelihood, the EEOC will argue that whether a medical exam is 'voluntary' for purposes of the ADA is determined not with respect to whether an employee could remain employed if he or she declined to participate, but whether he or she could still participate in the employer's group health plan if he or she declined to participate in the medical exam,” Flambeau's attorneys said. “However, there is little to no support for this position in case law or the statutory language of the ADA.”

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