NEW YORK (MainStreet) — It’s a fair bet that if you work for a sizable company, there is a workplace “wellness program” offered to employees. As part of that benefit you may earn a discount on a gym membership, have access to a weight loss or smoking cessation program or other informational and healthy lifestyle resources. Nearly two-thirds of smaller companies (199 workers or less) and a vast majority (94%) of companies with 200 or more workers offer such programs, according to The Kaiser Family Foundation.

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It’s certainly a worthwhile effort – up to a point. But then there are the health “risk assessments.” So-called “health fairs” or “biometric screenings” can pry into personal medical histories – and may be illegal.

The U.S. Equal Employment Opportunity Commission (EEOC) has filed lawsuits against two companies this year, claiming some medical exams and non job-related lifestyle inquiries violate the Americans with Disabilities Act (ADA).

One company required employees to participate in medical exams and health inquiries or face penalties. One worker who declined to submit to the exams was denied company-paid insurance benefits and forced to pay the entire premium for her employee health benefits. She was eventually even fired.

Another firm mandated employee participation in a similar medical testing and assessment program or face cancellation of health insurance, additional “disciplinary action,” as well as payment of a full premium in order to maintain coverage, according to the EEOC.

“The EEOC contends that the biometric testing and health risk assessment constituted ‘disability-related inquiries and medical examinations’ that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA)," the EEOC said in a statement. "These alleged actions and severe consequences for not providing prohibited information as part of its ‘wellness program’ violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries."

"Employers certainly may have voluntary wellness programs -- there’s no dispute about that -- and many see such programs as a positive development," said John Hendrickson, regional attorney for the EEOC Chicago district. "But they have to actually be voluntary. They can't compel participation in medical tests or questions that are not job-related and consistent with business necessity by canceling coverage or imposing enormous penalties such as shifting 100% of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all."

According to a 2012 Rand employer survey, fewer than half of employees (46%) undergo clinical screenings or health risk assessments – when given a choice.

--Written by Hal M. Bundrick for MainStreet

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