The EEOC has made it clear in recent months, they don't think that "wellness" plans are nearly as innocuous as the wellness industry and many employers do. Here is an excerpt of the latest EEOC suit from
Quarles & Bradley, LLP.:
... The new EEOC lawsuit was filed against a large corporation, Honeywell International. In the lawsuit, the EEOC seeks a temporary restraining order and preliminary injunction against Honeywell -- in essence, the EEOC is trying to "shut down" the Honeywell wellness plan. The lawsuit provides some details about the wellness plan, including that it:
* Is administered by a third party, not Honeywell directly. Note that having a third party administer a wellness plan is very common, often because an employer does not want to receive health information about its employees. Unfortunately, erecting such a "firewall" between the employer and vendor may not be sufficient to defeat an ADA / GINA violation
* Has biometric testing with a blood draw. An employee's and a spouse's biometric testing results include blood pressure, HDL and total cholesterol, glucose, height, weight and waist circumference (BMI)
* Imposes a penalty of $1,000 against an employee who is a tobacco user (with the same penalty also applying to a spouse who is a tobacco user) who refuses to take the biometric test for reasons other than smoking, along with an additional $500 surcharge if the employee refuses to take the biometric test.
* Offers a $1,500 health savings account ("HSA") contribution for employees who take the biometric test. Employees who refuse to take the biometric test do not receive the contribution.
The EEOC's lawsuit states that the biometric testing is a "medical examination" for ADA purposes. It also alleges that the medical examination does not meet the rigorous ADA rules for medical examinations of current employees (i.e., that the examination be "job-related" and "consistent with business necessity"). Thus, the EEOC alleges that the testing violates the ADA.
In addition, the EEOC notes that spouses of employees must, under the Honeywell plan, similarly submit to biometric testing for an employee to avoid the financial penalties noted above. The EEOC asserts that the information gathered on spouses is "genetic information" under GINA and that Honeywell violated GINA by gathering this information. ...
