The EEOC has challenged a third employer-sponsored wellness program in three months. Filed in federal court in Minnesota on October 27, the EEOC’s petition seeks to enjoin Honeywell International, Inc. from implementing its wellness program. We expect this case will be watched more closely by employers and wellness vendors alike as the program the EEOC describes in its petition is similar to popular wellness programs typically offered in the marketplace. The EEOC is alleging violations of Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), despite the employer’s assertions that its program complies with the Affordable Care Act’s wellness regulations.
The design of the program at issue is one you may have seen before: employer provides employees a financial incentive to encourage their participation in activities that will help them to better understand their health risks in the hope that they will adopt healthier behaviors. More specifically, employees and their spouses were asked to take part in biometric screenings that would inform them about certain health metrics, such as blood pressure, cholesterol, glucose level and body mass index (BMI). Employees and their spouses were not asked to achieve a particular outcome, just to get the screenings.
Failure to participate in the screenings would subject the employee to financial penalties. For example, an employee that does not participate would not be able to receive a company contribution to the employee’s health savings account of up to $1,500 for the year. Additionally, the employee would be subject to a $500 surcharge on medical plan costs, as well as tobacco surcharges of $1,000 that apply to the employee and the employee’s spouse if they fail to take the screenings.
The EEOC’s Claims
In its motion to support its request for a temporary restraining order, the EEOC argues that the program violates the ADA’s protection against involuntary medical inquiries. The biometric screenings are not job-related or consistent with business necessity, but are medical examinations that must be voluntary, according to the EEOC. Because of the incentives described above, the EEOC claims that the examinations are involuntary, effectively forcing employees to submit to the biometric screenings. The Eleventh Circuit rejected a similar challenge in Seff v. Broward County, FL, applying a separate “safe harbor” provision of the ADA.
The EEOC also claims that the program violated GINA’s proscription against an employer’s providing inducements to employees to obtain the family medical history of the employees. According to the EEOC, by imposing a penalty on the employee if the employee’s spouse does not participate in the program’s biometric screening, which could yield information related to conditions such as the spouse’s hypertension and diabetes, Honeywell’s program is providing a financial inducement to obtain genetic information (that is, manifestation of disease in the spouse, related to the employee). The EEOC is making these claims even though the information obtained from the screening is in all likelihood being provided to Honeywell’s vendor and not Honeywell directly.
What Should Employers Be Doing Now?
For many employers, open enrollment for 2015 either has started or is scheduled to start soon, and all of the planning, design and communications for health plans and related wellness programs are complete. However, companies that have to date considered only the ACA requirements for their wellness programs should re-evaluate the programs in light of ADA and GINA risks. At a minimum, employers should monitor the developments in this case and the EEOC’s overall enforcement of these programs.