Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 27

EEOC v. Flambeau, Inc.
The EEOC had similar concerns in EEOC
v. Flambeau, Inc., another recent case
where the EEOC alleged that a wellness
program violated 42 U.S.C. § 12112(d)(4)
(A).24 Similar to the wellness plan in Orion, the employer, Flambeau, Inc., offered
to pay 75% of their employees’ health insurance premiums if they agreed to undergo biometric testing and health risk assessments.25 The biometric testing, which
began in December 2011, involved blood
work and measurements, and the health
risk assessment required that employees
self-disclose their medical history.26 One of
the employees, Dale Arnold, was unable to
complete the biometric testing and health
risk assessment on the day appointed by
Flambeau because he was on medical
leave and being treated in the hospital for
cardiomyopathy and congestive heart failure.27 After Arnold returned from his medical leave, he tried to complete the required
biometric testing and health risk assessment.28 His requests for the necessary materials and additional time were rejected
and denied by Flambeau.29 Because Arnold
did not complete the biometric testing and

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health risk assessment, he was required, as
a penalty, to pay the entire premium cost
for single coverage for his health insurance
under COBRA.30
The EEOC alleged that Flambeau’s biometric testing and health risk assessment
included disability-related inquiries and
medical examinations within the meaning
of the ADA.31 The complaint further stated
that “Flambeau required Arnold [to] participate in medical examinations and inquiries
that were not job-related or consistent with
business necessity in violation of 42 U.S.C.
§ 12112(d)(4)(A).”32 The EEOC found Flambeau’s wellness program to be “involuntary” for employees because:
1) Arnold was subjected to termination of his health insurance and a
financial penalty of having to pay
the entire premium cost under
COBRA to obtain reinstated coverage as a result of not completing
the examination and inquiries;
2) Flambeau told Arnold and the other Flambeau employees that participation in the examinations and
inquiries was “mandatory” to be
on Flambeau’s “medical insurance”;
3) Flambeau told Arnold and the other Flambeau employees that fail-

THE VERMONT BAR JOURNAL • SPRING 2015

ing to attend the testing at his or
her scheduled time would result in
“disciplinary action”; and
4) Flambeau in fact did not provide
health insurance to new employees unless they submitted to examinations and inquiries, and did
not offer health insurance to existing employees without the COBRA premium penalty unless they
submitted to the examinations
and inquiries.33
Similar to the EEOC’s concerns in Orion, the EEOC felt that the effect of Flambeau’s practices was to deprive Arnold of
equal employment opportunities and otherwise adversely affect his status as an employee.34 Although Flambeau presented
its wellness program as a way to promote
health in its employees and reduce longterm health care costs, in practice it severely punished an employee with an expensive
health care condition.
Synthesizing the Orion and Flambeau
complaints, it appears that the more a wellness program looks like a way of dispensing with or weeding out potential high
health insurance claimants, the more the
EEOC is going to consider the program in
violation of the ADA. Promoting health is
a positive thing but punishing workers for

Designing Wellness Programs That Respect Employee Privacy

cannot request their medical history even
though they may exhibit high risk factors
for chronic diseases down the road.23

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