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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







August 28, 2014


 Health and Welfare Law Alert




EEOC Sues Employer for Violating ADA Wellness Program Rules 




The U.S. Equal Employment Opportunity Commission ("EEOC") has charged a Wisconsin-based employer with violating federal law by requiring an employee to submit to medical exams that were not job-related but were part of the employer's wellness program, and then firing the employee when she refused to participate in the program.


The EEOC filed the lawsuit under Title I of the Americans with Disabilities Act ("ADA"), which prohibits disability discrimination in employment. The federal agency had first attempted to reach a pre-litigation settlement with the employer through its conciliation process. The lawsuit, EEOC vs. Orion Energy Systems, is the first to directly challenge an employer's wellness program under the ADA. 


ADA Wellness Program Rules. The ADA limits when employers may require employees to undergo medical examinations or to provide answers to medical inquiries. However, voluntary medical examinations and inquiries are allowed as part of an employee wellness program if: 

  • participation in the program is voluntary;
  • information obtained is kept confidential in accordance with ADA rules; and
  • information obtained is not used to discriminate against the employee. 

Applicable ADA regulations further define a voluntary wellness program as one that neither requires employees to participate nor penalizes employees for non-participation.


Facts. In 2009, the employer implemented a wellness program that included a health risk assessment, blood work and a fitness component. One employee refused to participate in the program over concerns about whether the program was voluntary and whether the information obtained would be kept confidential.


Although the employer's group health plan was employer-pay-all, as a result of the employee's refusal to participate in the program, the employer shifted responsibility for payment of the premium for health benefits to the employee.


The employer then terminated the employee for her refusal to participate in the program. In response, the employee filed a complaint with the EEOC, and the agency has now filed a lawsuit against the employer in federal court. The EEOC is seeking injunctions, back pay and compensatory and punitive damages against the company.


Action Steps for Employers. Employers should be aware that the ADA may prohibit severe penalties under wellness programs such as shifting 100% of the premium cost for health benefits onto the employee or firing an employee who chooses not to participate. Positive incentives for wellness program participation are far less likely to violate the ADA.


Employers that sponsor wellness programs are advised to follow the Orion case and to stay alert for other developments impacting the wellness programs rules under the ADA. In addition, it should be noted that IRS, DOL and HHS have issued a separate set of requirements for wellness programs. (See the Alert of 6/6/13.) 




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.