Garrett Fenton Quoted Regarding Legality of Certain Wellness Programs in Politico Morning Shift

"Wellness Wars"
Politico's Morning Shift

Garrett Fenton was quoted regarding the legality of certain workplace wellness programs, in light of a recent decision out of the Western District of Wisconsin. The Americans with Disabilities Act (ADA) generally prohibits employers from inquiring about their employees' disabilities or requiring employees to undergo medical examinations, unless job-related and consistent with business necessity, subject to an exception for so-called "voluntary" wellness programs. In recent years, the Equal Employment Opportunity Commission (EEOC) has attempted to regulate wellness programs that the agency argues are not "voluntary" for this purpose. However, a separate ADA provision -- known as the "insurance safe harbor" -- says the ADA does not prohibit or restrict employers from establishing or administering "the terms of a bona fide benefit plan" that are based on underwriting, classifying risks or administering risks.

In 2014, the EEOC sued a plastic manufacturer in the Western District of Wisconsin, alleging its wellness program was not "voluntary" because participation in the program -- which consisted of a biometric screening and health risk assessment -- was a condition for receiving health coverage. Because eligibility for the company's health coverage was conditioned on participation in its wellness program, that required participation necessarily was a term of a "bona fide benefit plan," Fenton said, and thus could be analyzed under the separate insurance safe harbor provision. "As long as you meet one of those exceptions [either the exception for voluntary wellness programs or the insurance safe harbor], you're not going to be in violation of the ADA," according to the court. Ultimately, the court found that the wellness program satisfied the insurance safe harbor and was permissible under the ADA, without even reaching the issue of whether the program was voluntary. "If the case docket continues to develop that way, then that would be viewed as a very good thing for employers," Fenton said.

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