Prior to the EEOC’s lawsuit against Orion Energy Systems, Inc., filed on August 20, 2014 in federal court in Green Bay, WI, the EEOC had only commented on the validity of wellness programs under the ADA twice and then only in its informal discussion letters. The EEOC maintained in both of its informal discussion letters that mandatory participation in either completing health risks assessments or a wellness program violates the ADA while voluntary participation does not. The EEOC reasoned that mandatory participation would require a disabled employee to share information of his or her medical condition, something that employers are not permitted to do unless the health-related questions are job-related and consistent with business necessity. The EEOC also commented that surcharges for nonparticipation or reward for participation commute a voluntary program to involuntary status. After the passage of the Affordable Care Act (ACA), the EEOC held a public forum to explore wellness programs and the legality of surcharges or rebates for participation under the ADA in May 2013, acknowledging that the ACA and HIPAA already permit employers to charge premium variances for participation in wellness programs and tobacco use. The EEOC advised it intended to issue guidance following the forum, but it has not done so to date. Possibly this lawsuit is its response.
Nothing in the ADA prohibits an employer from including a mandatory wellness program in its welfare benefit plan because the inclusion of such a program in no way impacts the employee’s job or any accommodation the employee may need to perform that job. The medical questions prohibited by the ADA are those associated with employment decisions about an employee’s ability to do a particular job, not an employee’s participation in the employer’s healthcare coverage. Furthermore, those same employees have likely already provided the same medical information required by a wellness program in order to participate in any healthcare offered by the employer. The confidentiality tied to information provided by an employee for purposes of health care coverage also applies to information provided for the purpose of participating in a wellness program, and the employer does not have access to that information. Employers, especially self-funded plans, could build a wall between the two functions (employment hiring, placement and promotions separate from benefit plans and enrollment) to avoid further ADA scrutiny.
 EEOC Informal Discussion Letter: ADA: Health Risk Assessments, August 10, 2009;
EEOC Informal Discussion Letter: ADA & GINA: Incentives for Workplace Wellness Programs, June 24, 2011.