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Volume XII, Number 188

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July 06, 2022

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July 05, 2022

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Employer Wellness Plan Under Attack the Americans with Disabilities Act (ADA) by the EEOC

The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed its first lawsuit directly challenging a wellness program under the Americans with Disability Act (“ADA”). The case, EEOC v. Orion Energy Systemswas filed in the U.S. District Court for the Eastern District of Wisconsin.

The EEOC is alleging that Orion penalized an employee in 2009 after she declined to participate in the company’s wellness program by requiring her to pay her entire health care insurance premium, in addition to a $50-a-month nonparticipation penalty. Shortly thereafter, the employee was fired—a move that the EEOC believes was retaliatory. Further, the agency contends, Orion required medical examinations and made disability-related inquiries that were not job-related or consistent with business necessity.

The ADA limits the circumstances under which an employer may require physical examinations or answers to medical inquiries. Examinations and inquiries are permissible, but only if participation in an employee wellness program plan is voluntary. Orion’s program, according to the EEOC, was not voluntary because it penalized the employee when she declined to participate.

Employers who want to implement an employee wellness plan must ensure that the plan is compliant not only with ADA requirements, but also with the Affordable Care Act (“ACA”). See more on the ACA’s requirements, which are relatively new, here and here

The EEOC’s press release announcing the suit states that 94% of employers with over 200 workers offer some sort of wellness plan, as do 63% of smaller employers. That means that there is a lot of potential for liability when it comes to wellness plans.

© 2022 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume IV, Number 246
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About this Author

Preston Clark Worley, Labor Law Attorney, McBrayer Law Firm
Associate

Preston Clark Worley is a native of Richmond, Kentucky and proudly calls Central Kentucky home. After graduating from the University of Kentucky and the University of Kentucky College of Law, he joined McBrayer Law Firm as an Associate in 2010. He enjoys a diverse practice in several areas of real estate, transactional, litigation and administrative law. Mr. Worley has represented his clients by brief or in person before various trial courts throughout the Commonwealth and the Federal Eastern District of Kentucky, the Kentucky Court of Appeals, the Kentucky Supreme Court, Executive...

859-231-8780
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