Advisors know that wellness programs — and increasingly financial wellness programs — are all the rage in corporate HR departments across the country. But one recently drew the attention — and a lawsuit — from the Equal Employment Opportunity Commission (EEOC).
The EEOC said that Orion Energy System, based in Manitowoc, Wisc., “violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity” as part of a wellness program “which was not voluntary.” The EEOC said that when employee Wendy Schobert declined to participate in the program, “Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert” — and then “shortly thereafter” fired Schobert.
In its suit, the EEOC maintained that Orion's wellness program violated the Americans with Disabilities Act (ADA) as it was applied to Schobert, and that Orion retaliated against Schobert because of her “good-faith objections” to the wellness program. The EEOC further asserted that Orion interfered with Schobert's exercise of her federally protected right to not be subjected to unlawful medical exams and disability-related inquiries.
This most recent lawsuit is the EEOC's first to directly challenge a wellness program under the ADA. Earlier hearings by the EEOC on wellness programs revealed that a majority of employers now offer some sort of wellness program — 94% of employers with more than 200 workers and 63% of smaller ones, according to the EEOC, citing data from the Kaiser Family Foundation.
"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’s Chicago district. "But they have to actually be voluntary. They can't compel participation by imposing enormous penalties such as shifting 100% of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate. Having to choose between responding to medical exams and inquiries — which are not job-related — in a wellness program, on the one hand, or being fired, on the other hand, is no choice at all."
As you might expect, this was no ordinary wellness program, but rather a self-improvement program based on the “Onionhead” belief system. According to the EEOC’s filing, “What defendants glibly call ‘self-improvement workshops’ and ‘corporate wellness programs’ were actually compelled religious activities led by … management in violation of Title VII.”A report by Barnes & Thorburg LLP notes that “the EEOC claims that the employer administered the program by requiring employees to say ‘I love you,’ engage in prayer sessions and discuss personal issues with co-workers and management.”
The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, after first attempting to reach a pre-litigation settlement through its conciliation process. The case, EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019, was filed in U.S. District Court for the Eastern District of Wisconsin, Green Bay Division, and is assigned to U.S. District Judge Chief Judge William C. Griesbach.
