Can Your Employer Demand Intrusive Medical Testing? Court Says Yes

Portrait of a Doctor with surprise expression.
Portrait of a Doctor with surprise expression.

Does your employer have any business sticking its nose into your body (now there's a picture you wanted in your head) by ordering you to undergo medical examinations and biometric testing to determine if you are likely to become ill? According to one court, the answer is yes. A Wisconsin federal court has found that an employer's so-called "wellness program" didn't violate the Americans With Disabilities Act.2016-01-14-1452795875-4614084-doctor1029151_640.jpg

The employer in this case claimed the program was "voluntary." Sure, voluntary. That is, unless you actually wanted health insurance. Then it was absolutely, 100% mandatory. Employees couldn't get health insurance coverage unless they subjected themselves to a series of medical tests at the hands of a doctor the employer chose (can you say puppet?). Employees were supposed to take, on faith, that the information the employer-chosen doctor received would be kept confidential from the employer.

This mandatory medical examination is a new step on the slippery slope of "wellness programs" that are all the rage with employers. First, employers started offering money to employees who allowed the employer's physician to poke and prod them. Then it was health insurance discounts. "We're just trying to encourage employees to participate, " said employers, lying through their teeth. Because "encouragement" turned to blackmail, and here we are: the mandatory physical exam in order to obtain health insurance.

Right now the exam is only being imposed on employees. When employers get away with this, next will be exams of employee's families. Then will come mandatory exercise programs. Then mandatory dieting. All voluntary, of course. Unless you want insurance.

If any of this testing reveals the existence of a disability or a potential illness and the boss or HR finds out, you could be subjected to discrimination. Why doesn't this all violate the Americans With Disabilities Act? ADA says that employers can't demand physical examinations of employees unless they are both job-related and necessary to the business. How is your cholesterol and blood sugar level related to your employer's business? It isn't. The other exception is if the exam is voluntary. Blackmailing employees with insurance doesn't make the exam very voluntary. So yes, this case should have been an easy employee win in my opinion.

Well, according to the judge in Wisconsin and pretty much any management-side lawyer you ask, there's a safe harbor. A loophole, if you will. ADA exempts employers from its requirements for the purposes of administering terms of a "bona fide benefit plan" that are based on underwriting risks, classifying risks, or administering risks. The court in this case decided the employer could force employees to have these exams because the terms of the health insurance plan (which the employer set since it was self-insured) required it.

So let's recap. Employer has its own insurance plan. It decides that, as a condition of your participation, you have to disclose your medical history, sexual history, whether you plan to have children, family medical history. You then have to give blood, urine, and stool samples. You have to let a doctor poke and prod you in places that haven't seen daylight in 40 years. Then we're supposed to trust that the employer who demanded you do all this won't use the information it obtains against you. Won't use it for evil purposes. Won't be subjected to hacking so your medical records become public. We're supposed to trust that this is all for your benefit, just to encourage you to be healthy and happy.

Sure. If you believe that, I have some land in the Everglades to sell you. Employers are engaging in fat-shaming through thousands of dollars of penalties to overweight employees as we speak. Who is next? Diabetics? Employees with cancer or Parkinson's? What level of employer intrusion is too much?

Fortunately, EEOC is fighting this and other "wellness program" cases and is setting proposed regulations for employer wellness programs that will protect employees from some of these abuses. Unfortunately, employers will keep fighting them. We can only hope that other courts will disagree with this case and say no to abusive employer medical testing.

But don't just wait and hope the courts protect you. If you think employers shouldn't be allowed to force you to submit to this kind of forced examination that has nothing to do with your ability to do your job, tell your member of Congress. They can change it. They won't, because the party currently in charge of both houses won't do anything to help working people, but they can. Only if you speak out, especially in this election year, will your elected officials take action to keep your employer's hands off your body and your private medical information.

In the meantime, if your employer does use your medical information against you, that still likely violates the Americans With Disabilities Act. So employers who are using these programs do so at the risk that their management employees aren't as benevolent or trustworthy as they thought. If you've been subjected to discrimination due to a disability or medical condition, talk to an employment lawyer in your state to find out your rights.

If you need specific legal advice, it's best to talk to an employment lawyer in your state. For more general information about employment law issues, check out Donna Ballman's award-winning employee-side employment law blog, Screw You Guys, I'm Going Home and her employment law articles at AOL Jobs.