United States District Court, W.D. Wisconsin
December 30, 2015.
Equal Employment Opportunity Commission, Plaintiff: Brian
Charles Tyndall, LEAD ATTORNEY, Equal Employment Opportunity
Commission, Milwaukee, WI; Jean P. Kamp, LEAD ATTORNEY, U.S.
Equal Employment Opportunity Commission, Chicago, IL.
Flambeau, Inc., Defendant: Stephen Alfred Di Tullio, LEAD
ATTORNEY, John C. Gardner, DeWitt Ross & Stevens S.C.,
OPINION AND ORDER
B. CRABB, District Judge.
Equal Employment Opportunity Commission has filed this civil
action against defendant Flambeau, Inc., alleging a violation
of the Americans with Disabilities Act. Specifically,
plaintiff contends that defendant violated 42 U.S.C. §
12112(d)(4)(A), which generally prohibits employers from
requiring their employees to submit to medical examinations,
by conditioning participation in its employee health
insurance plan on completing a " health risk
assessment" and a " biometric screening test."
Defendant responds with the argument that although requiring
employees to complete the risk assessment and biometric test
might violate § 12112(d)(4)(A) in some circumstances,
here the assessment and testing requirement fell within the
ADA's " safe harbor," which provides an
exemption for activities related to the administration of a
bona fide insurance benefit plan. Defendant also contends
that plaintiff's claim fails because completing the
assessment and test was not the type of " required"
exam prohibited by § 12112(d)(4)(A). Defendant required
employees to complete the assessment and test only if they
wanted to participate in the company's insurance plan.
Defendant argues that when viewed from this perspective, the
assessment and testing were entirely voluntary and therefore
not prohibited by § 12112(d)(4)(A). The parties have
each filed and briefed cross-motions for summary judgment,
both of which are pending review.
denying plaintiff's motion, granting defendant's
motion and entering judgment in defendant's favor.
Although the applicability of 42 U.S.C. § 12112(d)(4)(A)
to the specific type of medical examination requirement at
issue here has not been addressed by the Court of Appeals for
the Seventh Circuit, I conclude that the protections set
forth in the ADA's safe harbor enable employers to design
insurance benefit plans that require otherwise prohibited
medical examinations as a condition of enrollment without
violating § 12112(d)(4)(A). In light of this conclusion,
it is unnecessary to address the parties' arguments with
respect to whether the assessment and testing is actually
" required" in the manner prohibited by §
12112(d)(4)(A). It is also not necessary to address
plaintiff's request for a finding that it satisfied its
statutory conciliation obligation set forth in 42 U.S.C.
§ 2000e-5(b) or defendant's request for a finding
that plaintiff is not entitled to punitive damages.
the parties' proposed facts, I find that the following
are relevant and not genuinely disputed.
manufactures and sells plastic products internationally. The
company employs at least 15 people, is engaged in an industry
affecting commerce and is a " covered entity"
subject to the ADA. One of defendant's manufacturing
facilities is located in Baraboo, Wisconsin, which is where
Dale Arnold worked from 1990 until 2014.
offers its employees various employee benefits, one of which
is the ability to participate in its health insurance plan.
The plan is self-funded and self-insured, but is administered
by United Medical Resources. Participation in the health
insurance plan is wholly voluntary.
Employees are not required to participate in the plan as a
condition of their employment. However, Dale Arnold