Recent EEOC Enforcement Jeopardizes Employer Wellness Programs

Bender's Labor and Employment Bulletin December 2014

David W. Garland, Chair of the firm's National Labor and Employment Practice Steering, in the firm's New York and Newark offices, August E. Huelle, Associate in the Employee Benefits and Labor and Employment practices, in the firm’s New York office, and Adam Solander, Associate in the Health Care and Life Sciences practice, in the firm’s Washington, DC, office authored an article in Bender’s Labor and Employment Bulletin, titled “Recent EEOC Enforcement Jeopardizes Employer Wellness Programs.”

Following is an excerpt (see below for a PDF of the full article):

According to the EEOC’s filing, the same financial inducements that cause the wellness program to violate the ADA also cause the program to violate the Genetic Information Nondiscrimination Act (‘‘GINA’’). The EEOC argues this is so because the inducements are tied to the collection of family medical history from an employee’s spouse. On November 3, 2014, U.S. District Judge Ann D. Montgomery denied the EEOC’s application for a TRO.

Honeywell marks the third wellness program suit initiated by the EEOC in the past three months. Two lawsuits were recently filed in Wisconsin that also challenge employer wellness programs under the ADA, EEOC v. Flambeau, Inc. and EEOC v. Orion Energy Systems, Inc. As in Honeywell, the EEOC claims the Flambeau and Orion wellness programs violate Title I of the ADA by requiring employees to submit to involuntary medical examinations and inquiries that are neither job-related nor consistent with business necessity. In all three challenges, the merits of the EEOC’s allegations are not yet decided.

The article is based on a HEAL Advisory published by Epstein Becker Green.