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New District Court Decision on Wellness Programs Raises More Questions
Miller & Chevalier 
Sept. 28, 2016
"If the case is appealed to the Seventh Circuit (where the Flambeau decision currently is pending), and the inapplicability of the ADA safe harbor to wellness programs is upheld, then Orion could create a circuit split on the issue, call into question both the Eleventh Circuit's decision in Seff and the district court's decision in Flambeau and potentially be ripe for Supreme Court review.... It is also important to emphasize that Orion did not actually interpret or apply the EEOC's May 2016 final regulations on voluntary wellness programs; and if it had, the program at issue likely would not have failed, in light of the regulations' 30% limit on incentives." [EEOC v. Orion Energy Systems, Inc., No. 14-1019 (E.D. Wis. Sept. 19, 2016)]
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