September 15, 2016
from the United States District Court for the Western
District of Wisconsin. No. 3:14-cv-00638-bbc - Barbara B.
Flaum, Manion, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge
merits, this Americans with Disabilities Act case would turn
on the interplay between the ADA's prohibition on
involuntary medical examinations and its insurance
safe-harbor provision. See 42 U.S.C. §§ 12112(d)(4)
and 12201(c). Defendant Flambeau, Inc. adopted an employee
wellness program. It required its employees, as a condition
of receiving employer-subsidized health insurance, to fill
out a medical questionnaire and to undergo biometric testing.
One employee did not meet those requirements in time for the
2012 benefit year. As a result, he and his family were
briefly without health insurance. He filed a complaint with
the Equal Employment Opportunity Commission, and the EEOC
then filed this suit against Flambeau. The EEOC contends that
Flambeau's requirement violated the ADA's ban on
involuntary medical examinations in 42 U.S.C. §
12112(d)(4). On cross-motions for summary judgment, the
district court granted Flambeau's motion and dismissed
the case. The EEOC has appealed.
merits, the parties have taken ambitious positions on appeal.
Flambeau argues that wellness programs are largely exempt
from the limits on medical examinations because the ADA does
not "restrict ... [an] organization ... administering
the terms of a bona fide benefit plan that are based on
underwriting risks, classifying risks, or administering such
risks that are based on or not inconsistent with State
law." 42 U.S.C. § 12201(c)(2). The EEOC replies
that this insurance safe harbor simply does not apply to
wellness programs so that the prohibition on involuntary
medical examinations applies. Both sides also offer narrower
grounds for deciding the case.
conclude that the statutory debate should not be resolved in
this appeal. The relief the EEOC seeks is either unavailable
or moot. The employee resigned several years ago, before suit
was filed. He did not incur damages as a result of
Flambeau's policy, and he is not entitled to punitive
damages. In addition, Flambeau abandoned its wellness program
requirements for reasons unrelated to this litigation.
Because the undisputed facts show that the EEOC is not
entitled to any relief, we affirm the district court's
judgment dismissing the case but without reaching the merits
of the parties' statutory debate.
Factual and Procedural Background
general, employer wellness programs use a set of benefits,
incentives, and/or penalties to improve employee health and
lower health insurance costs. For example, a wellness program
might include discounted gym memberships, higher insurance
premiums for smokers, and monetary rewards for weight loss.
Flambeau offered such a wellness program to its employees.
program included a health risk assessment in which employees
answered questions about their medical histories. They also
were measured for health indicators such as weight,
cholesterol levels, and blood pressure. Each employee
received his or her individual test results. Flambeau
received aggregated and anonymous results. In 2012 and 2013,
Flambeau pushed employees to participate in the wellness
program by requiring participation as a condition of the
employer's contributions to an employee's health
Arnold, a Flambeau employee, was unable to complete the
assessment and testing before the 2012 benefit year deadline.
Flambeau terminated his insurance coverage but gave him the
option of buying continuing coverage under COBRA. Mr. Arnold
did not take that option, so his health insurance lapsed.
Arnold then filed complaints with the Department of Labor and
the Equal Employment Opportunity Commission alleging
violations of the Family Medical Leave Act and the Americans
with Disabilities Act. After discussions with the Department
of Labor, Flambeau agreed to reinstate Mr. Arnold's
health insurance retroactively so long as he completed the
testing and paid his own share of the premiums. Mr. Arnold
did so, and Flambeau restored his insurance.
the 2014 benefit year began, Flambeau's management ended
the mandatory testing program, finding that it was not
cost-effective. Mr. Arnold resigned his job at Flambeau in
March 2014. Six months later, in September 2014, the EEOC
filed this suit against Flambeau alleging that its mandatory
assessment and testing violated the ADA prohibition on
involuntary medical examinations in 42 U.S.C. §
moved for summary judgment. It argued that its wellness plan
was covered by the ADA's insurance safe harbor, a
provision of the Act that limits the interpretation of (among
other provisions) the ban on involuntary medical
examinations. See 42 U.S.C. § 12201(c). The safe harbor
says that ADA provisions, including Subchapter I, which
contains the ban on involuntary medical examinations,
"shall not be construed to prohibit or restrict ... [an]
organization ... from ... administering the terms of a bona
fide benefit plan ... ." 42 U.S.C. § 12201(c)(2)
& (c)(3). The safe harbor also provides that it
"shall not be used as a subterfuge to evade the
purposes" of the ADA provisions on employment and public
accommodations and services. § 12201(c). Flambeau argued
in the alternative that the health testing and assessments