Court Allows ADA Lawsuit on Employee Wellness Program to Proceed

A putative class action suit brought under the Americans with Disabilities Act (ADA) involving a company’s “voluntary” employee wellness program is set to proceed.

Robin Shea of Constangy, Brooks, Smith & Prophete, writes about the suit on the firm’s website. In June, a federal court in Illinois ruled the suit could proceed. The case centers on a discount on health insurance premiums for which non-participants, including the plaintiffs, were not eligible.

The employer claimed it wasn’t “penalizing” employees, only “incentivizing” participation in the wellness program, Shea writes. Therefore the program was voluntary. The plaintiffs argued that the lack of incentives was a penalty for non-participation.

Under the ADA employers can’t request medical information from an applicant before a conditional offer of employment is made. After a conditional offer the employer can require the applicant to fill out a questionnaire or take an exam. Once an applicant is employed the employer can request medical information, but only if the request is “job-related and consistent with business necessity.”

However, the employer can ask for employee medical information in connection with a voluntary wellness program without violating the ADA.

But the plaintiffs argued that the discount for participation is so significant that it makes participation in the wellness program “not voluntary.”

The judge noted that the added cost of health insurance for one of the plaintiffs with family coverage was more than $1,800 a year. Is that enough to “incentivize” them to participate in an employer wellness program and submit to health screening they’d prefer to avoid? That will be decided later in the litigation, either through motions-based discovery or at trial.

In the meantime, Shea offers the following advice to employers: “Employers should review their wellness programs and determine whether any monetary incentives for participation are so sweet that employees may feel they have no choice but to participate.”

Read more of Today’s General Counsel‘s coverage of the ADA here, here, and here.