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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

Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Institute, HPLive, Healthstat University and HERO. Barbara J. Zabawa is a Clinical Assistant Professor for the University of Wisconsin Milwaukee College of Health Sciences, Department of Health Services Administration where she teaches graduate and undergraduate courses in health law and compliance, US health care delivery and health professions career development. Barbara also owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters. She was also a shareholder and Health Law Team Leader at a large Wisconsin law firm. Barbara serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and a compliance resource. Her commitment to improving health and wellness also shows through her community service. Barbara founded the Wellness Compliance Institute, a nonprofit organization that seeks to improve wellness program and activity compliance. She also is a Board Member for the Rogers Memorial Hospital Foundation, a health care organization that specializes in treating mental illness and she chairs the State Bar of Wisconsin Health Law Section. Barbara is licensed to practice law in both Wisconsin and New York.

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