Wagner Header

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







December 11, 2014


 Health and Welfare Law Alert




 EEOC Sues Employer over Wellness Program, Claiming ADA and GINA Violations




The Equal Employment Opportunity Commission ("EEOC") has filed a lawsuit against a large employer, claiming that its wellness program violated the Americans with Disabilities Act ("ADA") and the Genetic Information Nondiscrimination Act ("GINA"). This marks the first time the EEOC has challenged a wellness program containing the penalties permitted under the Affordable Care Act ("ACA").


Background. EEOC has characterized the biometric screenings required under the wellness program at issue as medical tests that are permissible only if voluntary or required by business necessity. (A biometric screening is a short health examination that indicates the risk for certain diseases and medical conditions.)The employer acknowledges that the screenings are not required as a business necessity and instead claims that the screenings are voluntary or are a bona fide health plan exception that is permitted under the ADA. The EEOC disagrees that there is an exception under the ADA that permits this type of screening.


The EEOC also claims that the wellness program violates the ADA because the size of the penalties is so large that the program cannot be called "voluntary." Under the employer's program, $2,000 of the $4,000 applicable penalties relate to tobacco use-$1,000 for the employee and $1,000 for the spouse. Employees who declined the biometric screening (which, among other things, tested for smoking status) were automatically treated as smokers.


The ACA wellness program guidelines allow penalties of no more than 30% of premium costs, with penalties of up to 50% of premium costs for tobacco users. EEOC correctly notes that the relevant ACA regulations provide that compliance with those regulations does not establish compliance with other laws or regulations governing wellness programs. When asked to specify the acceptable limits for wellness program penalties, EEOC responded that it would not draw a single specific limit but that this employer's penalty levels were not in compliance.


Finally, the EEOC claims that the biometric screenings violate GINA (with respect to the testing of employees' spouses), because the screening can provide information that is protected genetic information.


Legal Proceedings. The EEOC requested that the court issue a temporary restraining order ("TRO") to enjoin the employer from imposing penalties on employees for refusing to undergo the biometric screenings. In support of this request, the EEOC argued that the privacy invasion could not be remedied once the data had been collected. Despite this argument, the court refused to issue the TRO, concluding that it would be easier for the employer to refund the penalties than to collect the penalties after the final ruling.


Impact on Employers.  In light of the claims brought against this employer, the employers most at risk for an EEOC challenge are those with wellness programs that impose high penalties (i.e., thousands of dollars), require biometric screenings, and include spouses in the biometric screening. Employers with questions about their own wellness programs based on the EEOC's lawsuit are advised to contact qualified employee benefits counsel for assistance. 




This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


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.