Chicago partner Sarah Millar was quoted in a Human Resource Executive Online article titled, “EEOC Throws a Wellness Curve.” The article discusses how, after its third lawsuit in 2014, the U.S. Equal Employment Opportunity Commission (EEOC) has given employers pause when it comes to wellness initiatives and conflicting laws.
The EEOC lawsuits involve Wisconsin-based Orion Energy Systems, Flambeau Inc. (also in Wisconsin) and Honeywell, in Minneapolis. While each scenario is different, all involve wellness programs that the EEOC says violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
Sarah said that based on how the Honeywell program has been described, it is similar to the majority of wellness programs she sees other employers offering. She notes that the EEOC puts employers in a tough position because of the conflict between the laws - the ACA and HIPAA on one side and the ADA on the other. “What is a plan sponsor supposed to do? They really are between a rock and a hard place,” she says.
Sarah notes that the EEOC suits have a potential silver lining: after the cases settle, employers should have a better understanding and definition on how to structure wellness programs that don’t violate the ADA and/or GINA. “I would say three cases is probably a trend, so we are advising clients to be cautious and work closely with legal advisors to take the right steps, to mitigate risks,” she says. “Some employers may do nothing and some will hold back or make it voluntary. There are a lot of employers asking themselves the question, ‘Are we next?’”