Thursday, November 6, 2014

Wellness Programs Continue to be a Target for the EEOC

As we mentioned in a post last month, the EEOC has a clear agenda to target employer wellness programs. In our earlier post, we discussed two lawsuits against employers in Wisconsin. Now, the EEOC has set its sights on one of our local employers - Honeywell. Last week, the EEOC sued Honeywell over a wellness program that involves employees and their spouses being asked to participate in biometric screening and a determination of body mass index. According to the EEOC’s complaint, employees who don’t participate along with their spouses are assessed a surcharge of up to $500 on medical costs and the company may reduce contributions to their health savings account by up to $1500. The EEOC alleges that the screening and subsequent penalties for not participating are unlawful under the federal Americans with Disabilities Act and may also constitute discrimination based on genetic information under the federal Genetic Information Nondiscrimination Act. Honeywell claims that its program is lawful under the Affordable Care Act, pointing out that employees aren’t required to participate and those who don’t do not risk termination of their employment. 

This week, the EEOC unsuccessfully sought an injunction from the court to prevent Honeywell from assessing a surcharge while the case is pending. Although this injunction motion was denied, the court did not rule on the legal validity of Honeywell’s program. How that issue will ultimately be resolved is unknown. Employers may, however, find themselves losing the cost savings they are often trying to achieve with wellness programs if they become embattled in litigation over the legality of a program. The silver lining for employers (other than those named in the lawsuits), though, is that the courts will hopefully provide more clarity on what is permissible for wellness programs. So, stay tuned!

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