Blog Post #36: When Wellness Programs Violate GINA and the ACA

By Janei Au

The Affordable Care Act created an exception for workplace wellness programs under the HIPAA non-discrimination provisions.[1] This allows employers to offer benefits or incentives to only those employees who either participate in wellness programs or meet health objectives.[2]However, some employers have taken this further, actually penalizing those who do not wish to participate or choose not submit to medical screening, arguing incorrectly that this is allowed under the ACA.[3]

In 2014, the EEOC brought suit against three employers for violating both GINA and ACA.[4] Flambeau, Inc. threatened to cancel employee insurance if they refuse to submit to their wellness program medical exams.[5] Orion Energy Systems also requires employees to participate in wellness program medical exam, and fired one woman who objected.[6] Honeywell, Inc. penalizes employees if they do not participate in its wellness program and if the employee or their spouse refuse to submit to biometric screening.

Under Honeywell’s wellness plan, if an employee does not get biometric screening, including blood tests, they will have (1) a $500 surcharge added to their medical plan; (2) a $1000 tobacco surcharge (even if they do not smoke); (3) an equal tobacco surcharge if the employee’s spouse refuses medical screening; and (4) and not receive the maximum $1,500 health saving account contributions made by Honeywell.[7] Of these provisions, only the health savings account contributions can be considered a protected incentive under the ACA.[8] The rest are penalties, not benefits.

Honeywell, like other employers, is using the ACA in order to save money on health insurance. They are not simply offering a wellness plan[9]. They are effectively requiring employees to participate by penalizing them if they do not.[10] The ACA allows companies to provide incentives to employees who elect to participate in these programs.[11] It does not allow them to charge employees who choose not to participate or who do not live up to the health expectations of their employers.[12]

Requiring employees to submit to health exams, which require them to answer questions regarding their family medical history is prohibited by the Genetic Information Nondiscrimination Act (GINA) and is not protected under the ACA.[13] Cancelling insurance or firing someone for not participating in a wellness program or submitting to the medical screening can in no way by categorized as a wellness program incentive covered by the ACA.[14]

Honeywell argues that the employees are not asked to meet specific health objectives, just to submit to the biometric screening.[15] However, if they refuse, on privacy grounds for example, they are treated as if they smoke tobacco and punished with the $1000 surcharge.[16] Honeywell goes a step further punishing the employees whose spouses do not care to participate. It believes that because GINA was designed to protect the genetic information of employee’s biological relatives that asking spouses to submit to biometric screening does not violate GINA.[17] Regardless, an employer does not have a right to an employee’s spouse’s medical information and cannot penalize the employee if the spouse does not want to provide that information.[18]

While wellness programs have definite health benefits and can be considered and employment benefit, requiring employees to submit to biometric screening as part of the programs is intrusive and not designed to help the employees but to save companies money. As health policy analysts Al Lewis and Vik Khanna argued: “The . . . goal is to allow companies to punish unhealthy workers to the limits of the Affordable Care Act’s wellness provision. These CEOs must know that these ‘let’s play doctor’ programs and fines are expensive, intrusive, ineffective and embarrassing for the employees…[T]hese companies are all self-insured, and they believe that unhealthier people cost them more.”[19] By placing the costs on the employees, these companies are not creating healthier employees, but are simply saving themselves money.

 

[1] 111 P.L. 148, 124 Stat. 119 (2010).

[2] Fact Sheet, Dept. of Labor, The Affordable Care Act and Wellness Programs, (last visited Apr. 22, 2014), available athttp://www.dol.gov/ebsa/newsroom/fswellnessprogram.html.

[3] Stephen Miller, EEOC Sues Employers’ Wellness Programs: Steep penalties for not participating said to make programs involuntary, Society for Human Resource Management, Aug, 26, 2014,http://www.shrm.org/hrdisciplines/benefits/Articles/pages/eeoc-wellness-lawsuit.aspx.

[4] Stephen Miller, EEOC’s Wellness Lawsuits Target Incentives, Spark Criticism, Society for Human Resource Management, Nov. 3, 2014,http://www.shrm.org/hrdisciplines/benefits/articles/pages/eeoc-sues-honeywell.aspx.

[5] Press Release, Equal Employment Opportunity Commission, EEOC Lawsuit Challenges Flambeau Over Wellness Program, (Oct. 1, 2014),available at http://www.eeoc.gov/eeoc/newsroom/release/10-1-14b.cfm.

[6] Press Release, Equal Employment Opportunity Commission, EEOC Lawsuit Challenges Orion Energy Wellness Program and Related Firing of Employee, (Aug. 20, 2014), available athttp://www.eeoc.gov/eeoc/newsroom/release/8-20-14.cfm.

[7] EEOC v. Honeywell Int. Inc., No. 0:14-cv-04517-ADM-TNL (filed Oct. 27, 2014), available at http://www.benefitslawadvisor.com/wp-content/uploads/sites/172/2014/10/EEOCvsHoneywellPetition-3.pdf.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Stephen Miller, EEOC’s Wellness Lawsuits Target Incentives, Spark Criticism, Society for Human Resource Management, Nov. 3, 2014,http://www.shrm.org/hrdisciplines/benefits/articles/pages/eeoc-sues-honeywell.aspx.

[13] Id.

[14] 110 P.L. 233, 122 Stat. 881 (2008); 111 P.L. 148, 124 Stat. 119 (2010).

[15] Stephen Miller, EEOC’s Wellness Lawsuits Target Incentives, Spark Criticism, Society for Human Resource Management, Nov. 3, 2014,http://www.shrm.org/hrdisciplines/benefits/articles/pages/eeoc-sues-honeywell.aspx.

[16] Id.

[17] Id.

[18] Fact Sheet, Dept. of Labor, The Affordable Care Act and Wellness Programs, (last visited Apr. 22, 2014), available athttp://www.dol.gov/ebsa/newsroom/fswellnessprogram.html.

[19] Al Lewis and Vik Khanna, Wellness Puts CEOs on Collision Course with Obamacare and Common Sense, The Health Care Blog, (Nov. 29, 2014), http://thehealthcareblog.com/blog/2014/11/29/wellness-puts-ceos-on-a-collision-course-with-obamacare-and-common-sense/.