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EEOC vs. Company Wellness Programs

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By Felicity Hanks, Esq. (fhanks@hillwallack.com)

With its third lawsuit in as many months, the U.S. Equal Opportunity Commission (“EEOC”) has made known its condemnation for certain aspects of company wellness programs. Its focus, in part, appears to be on the voluntariness of participation in such programs, and the agency claims that incentive plans which result in penalties or discipline for those individuals that choose not to participate in the wellness programs make the programs compulsory and thus violative of federal law.

EEOC filed a lawsuit in a Minnesota federal court seeking a preliminary injunction against New Jersey Corporation, Honeywell, to prevent the company from engaging in the medical testing of employees and spouses covered under its health plan. The lawsuit alleges that the individuals were to undergo biometric testing for several factors, including nicotine, waist size and blood pressure, and face penalties and surcharges up to $4,000. The testing was scheduled to occur in late October and the EEOC seeks its delay, claiming that the testing would violate the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

In response to EEOC’s “frivolous” lawsuit, Honeywell issued a press release on October 29, 2014 that accused the agency of being out of touch with the purpose and design of company wellness programs. A copy of the press release is available at http://honeywell.com/News/Pages/Honeywell-Responds-to-EEOCs-Frivolous-Lawsuit-To-Stop-Companys-Biometric-Screening-for-Employees.aspx.

Honeywell is the largest of the three companies subject to these EEOC lawsuits, with more than 50,000 employees in the U.S. The agency previously sued Flambeau, Inc. on October 1, 2014 and it began this sting of cases with a lawsuit against Orion Energy Systems on August 20, 2014. EEOC’s press releases regarding the Flambeau and Orion lawsuits can be found online at: http://www.eeoc.gov/eeoc/newsroom/release.

EEOC’s current position on company wellness programs puts many employers in between the proverbial rock and hard place. On one hand the Affordable Care Act has encouraged company wellness programs and there is a noticeable trend towards making individuals accountable for their own health and wellbeing. On the other hand, incentivizing employees to participate in heath assessments may be deemed discriminatory under the ADA. Until these cases move forward and guidance is provided, Employers are cautioned to tread carefully in implementing wellness plan incentives (or penalties) and to keep abreast of EEOC’s new focus on this area. We recommend that all employers seek legal counsel to address any and all concerns with the legality of their wellness programs.


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