Update on EEOC v. Flambeau case

Posted by Barbara J. Zabawa | Sep 19, 2016 | 0 Comments

Last week the Seventh Circuit Court of Appeals heard oral arguments on the EEOC v. Flambeau case.  Recall that this case was one of three cases brought by the EEOC in 2014 against three different employers.  In the Flambeau case, the EEOC alleged that the company violated the Americans with Disabilities Act (ADA) because its wellness program, which included a health risk assessment and biometric screen for employees who participated in the employer's group health plan, was not voluntary.  Specifically, employees who refused to take the HRA and biometric screen were required to pay 100% of their health insurance premium.

In December 2015, the U.S. District Court for the Western District of Wisconsin decided in favor of Flambeau, concluding that the ADA safe harbor applied to Flambeau's wellness program.  That safe harbor allows group health plans to conduct medical exams for purposes of underwriting risks or administering risks, so long as those exams are not used as a way to get around the ADA's other provisions.  Because Flambeau lost at the district court level, it decided to appeal the district court decision to the Seventh Circuit Court of Appeals.

The Seventh Circuit held oral arguments on the Flambeau case on September 15, 2016.  According to one source, the three-judge panel asked surprising questions relating to whether the employee at issue in the case suffered any sort of "injury," whether financial or emotional.  In US law, in order to bring a lawsuit, a plaintiff must have some type of injury before the courts can intervene.  One judge on the panel said that the Flambeau case appeared to be "much ado about ancient history."  The court asked both parties to the case to write briefs about the injury issue within 10 days.

Given the Seventh Circuit's interest in whether there is indeed an injury in the case, it may be possible that the court will dismiss the case on "jurisdictional grounds."  This means that the Seventh Circuit would not opine on the final ADA rules issued by the EEOC in May and whether the EEOC exceeded its authority in issuing those rules.  Without a court decision on how the final rules affect the Flambeau case, the final rules will continue to stand and take effect starting January 1, 2017.  

Please contact the Center for Health and Wellness Law, LLC with any workplace wellness program compliance questions.

About the Author

Barbara J. Zabawa

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court


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