Despite numerous statutory and regulatory provisions that provide employer-sponsored wellness programs a "safe harbor" under the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has taken the position that otherwise compliant programs violate the ADA if the employer incentives are so strong that the health assessments and screenings could be considered coercively “mandatory.” As a result, the EEOC has pursued legal action against companies on the theory that their programs are not “voluntary.”

In late 2014, the EEOC sued three employers -- Honeywell, Flambeau and Orion Energy Systems -- alleging that the incentives offered under their programs effectively required employees (i.e., left them with no affordable alternative but) to submit to health assessments and screenings. Soon after the lawsuits were filed, BRT President Engler sent a letter to Secretaries Burwell (HHS), Lew (Treasury), and Perez (Labor) criticizing the EEOC’s actions. 

The EEOC filed for a preliminary injunction in November 2014 to stop the Honeywell program. The U.S. District Court for the Western District of Wisconsin denied the motion. The agency did not request such relief in the other two cases and in December 2015, and the district court entered summary judgment in favor of Flambeau, holding that the EEOC’s claim was barred by the ADA’s safe harbor for benefit plans. The EEOC has appealed to the Seventh U.S. Circuit Court of Appeals, and Business Roundtable has filed an amicus brief in support of Flambeau. 

The brief is available online here.

UPDATE: On January 25, 2017, the Seventh Circuit Court of Appeals dismissed EEOC's appeal as moot, as the employee who initiated the complaint had left Flambeau and the company dropped its wellness programs. The court's ruling is available here.