Feds sue Wisconsin company, say it can't punish workers who don't adhere to wellness program

The federal government has sued a Wisconsin company over its wellness program, saying the business cannot require employees to participate and punish those who don't.

The U.S. Equal Employment Opportunity Commission said Flambeau, Inc., a Baraboo-based plastics manufacturer, violated the Americans with Disabilities Act by requiring an employee to submit to medical exams and answer health questions not related to his job.

It is the second lawsuit nationwide that the agency has filed alleging ADA violations by a wellness program. The first, filed in August in Green Bay, made similar allegations against Manitowoc-based Orion Energy Systems.

"Employers certainly may have voluntary wellness programs — there's no dispute about that — and many see such programs as a positive development," EEOC regional attorney John Hendrickson said Wednesday in a statement. "But they have actually to be voluntary. They can't compel participation ... by cancelling coverage or imposing enormous penalties."

A spokesman for the company did not immediately return a message for comment.

According to the lawsuit filed Tuesday in federal court in Madison, Flambeau asked its employees to complete biometric testing and a health risk assessment in December 2011 as part of its wellness program. The health risk assessment asked workers about their medical histories.

One worker, Dale Arnold, didn't meet the deadline for having the tests done and completing the assessment because he was on medical leave and in a hospital being treated for cardiomyopathy and congestive heart failure, the lawsuit said. Soon after, the company told Arnold that because he had not met the deadline, it would no longer provide him with health insurance and cover about three-fourths of the premium. Arnold paid the full premium for his insurance for about six months before he could no longer afford it and the policy was cancelled, the lawsuit said.

Flambeau also did not provide new employees with health insurance unless they completed biometric testing and a health risk assessment, another indication that the wellness program was not truly optional, the lawsuit said.

The lawsuit seeks back pay to compensate Arnold for the premiums he paid and other losses, along with an order barring Flambeau from requiring workers to participate in the wellness plan.