The US Court of Appeals for the Seventh Circuit has turned back a challenge by the Equal Employment Opportunity Commission (EEOC) to requirements under an employer's wellness program. The court ruled that the relief sought by the EEOC is either unavailable or moot (EEOC v. Flambeau, , at *1 (7th Cir. Jan. 25, 2017); see Practice Notes, Wellness Programs and Wellness Programs: EEOC Rules Under the ADA). The EEOC asserted that the disputed wellness program, which required employees to complete a medical questionnaire and undergo biometric testing as conditions to receiving employer-subsidized health insurance, violated a prohibition on involuntary medical examinations under the Americans with Disabilities Act (ADA). Without ruling on the case's merits, the Seventh Circuit affirmed a district court decision to dismiss the case (see Legal Update, ADA Allows Wellness Exams as Condition of Health Plan Enrollment: Western District of Wisconsin).

The employer's wellness program included:

In 2012 and 2013, the employer required employees to participate in the wellness program in order to receive employer contributions to their health insurance premiums. One of the employer's employees failed to complete the wellness program's health risk assessment and biometric test for the 2012 plan year. As a result, the employer:

The employee filed complaints with the EEOC and Department of Labor (DOL), and the employer later reinstated the employee's coverage, subject to his completion of the wellness program's testing and payment of plan premiums. The employee agreed and his coverage was reinstated retroactive to January 2012. Nonetheless, the EEOC sued the employer on the employee's behalf, asserting that the plan's wellness program requirement violated the ADA's ban on employer-mandated medical examinations (42 U.S.C. § 12112(d)(4)).

In court, the employer argued that:

Ruling for the employer, the district court concluded that the safe harbor could apply to some wellness programs, and that it covered the program at issue in this litigation. Following oral argument on the EEOC's appeal of this outcome, the Seventh Circuit requested additional briefing on whether the case was moot.

On appeal, the Seventh Circuit concluded that the EEOC's claim for:

The Seventh Circuit also rejected the EEOC's argument for injunctive relief, concluding that this claim was moot because the employer had discontinued its mandatory wellness program so there was nothing to enjoin. The EEOC argued that the employer's voluntary cessation of purportedly illegal conduct did not render the case moot. However, the court rejected this voluntary cessation theory because, among other reasons, there was no reasonable expectation that the alleged violations would recur (see Legal Update, Supreme Court Applies Voluntary Cessation Doctrine in Finding Nike Trademark Case Moot). Here, the court observed that the employer stopped requiring biometric testing and health risk assessments because it determined that their costs outweighed their benefits, making it unlikely that the alleged discrimination would recur.

As indicated in the Seventh Circuit's punitive damages analysis, the relationship between the ADA's prohibition on involuntary medical examinations and its insurance safe-harbor provision remains an area of unsettled law. Although the Seventh Circuit's decision does not address the merits of this conflict, the court does express some skepticism of the EEOC's position on this question, noting that while the agency's guidelines are important and entitled to some deference, they are not controlling law. Moreover, many circuit courts of appeals have yet to weigh in on this conflict, meaning that employers should continue to proceed with caution in implementing health risk assessments and biometric screenings as part of their wellness programs.