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Company's harsh penalties for skipping wellness program draw EEOC action again


The Equal Employment Opportunity Commission is suing another company with the charge its wellness program violates the Americans with Disabilities Act.

The company, Baraboo, Wisconsin-based Flambeau Inc., a plastics manufacturing company, has denied the charge it violated the ADA and said it plans to defend itself against the suit.

The agency said Wednesday that Flambeau violated the ADA by requiring an employee to submit to medical testing and assessment in connection with its wellness program “or face dire consequences.”

The EEOC said the wellness program required that employees 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 if they didn't submit.

The agency said when employee Dale Arnold did not complete the biometric testing and health risk assessment, Flambeau cancelled his medical insurance and shifted responsibility for payment of the entire premium to him.

It said employees who had taken the testing and assessment, by comparison, did not have their coverage cancelled involuntarily, and were required to pay only 25% of their premium costs.

The EEOC said the testing and assessment constituted “disability-related inquiries and medical examinations” that were not job related and consistent with business necessity as defined by the ADA, and violated its Title I, which prohibits disability-related inquiries.

“Employers certainly may have voluntary wellness programs — there's no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district, in the EEOC's statement.

“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% 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.”

The company said in a statement, “Flambeau, Inc. is a family owned plastics business that has been in business for over 65 years. Our employees are important to us and have been an integral part of our success.

"As part of our efforts to help our employees enjoy healthy lives inside of the workplace as well as in their personal lives, Flambeau adopted a health program that allowed employees to assess their health status and participate in programs to improve their health if they so chose. Flambeau’s health program in Baraboo, Wisconsin, includes a health clinic where employees and dependents covered by the company’s health plan can be seen by a physician at little or no cost to the employees or their dependents.

"Flambeau is aware of the lawsuit filed earlier this week by the EEOC and is discouraged by the EEOC’s disregard of the facts in this matter, as well as its insistence that Flambeau discontinue health programs that have been of benefit to our employees and supported by our employees. Flambeau strongly denies that it has violated any aspect of the Americans with Disabilities Act and intends to vigorously defend this matter."

In August, the EEOC filed suit against a Wisconsin energy company for allegedly violating the ADA, charging that it shifted responsibility for paying health care premiums to an employee who refused to participate in its wellness program, then fired her.

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