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Is My Wellness Program Going to be Sued by the EEOC?

By: Dr. David Rearick, Chief Medical Officer

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With the recent suit against Honeywell, you may be asking yourself, your CEO may be asking you, you may be asking your broker/consultant or wellness vendor "Is my wellness program liable to be sued?" Depending on who you ask, you might get different answers. The correct answer is, "Yes", it is possible the EEOC will sue you, or even an employee - but, wait - don't panic, that was always the case. I'll explain in a moment why this is probably the wrong question and certainly shouldn't be your major concern.

What did Honeywell do to get sued:

  • Honeywell's wellness program required completion of a biometric screening by the employee and spouse.
  • Failure to complete penalized employees with a surcharge of $500 (+$1,000 surcharge for each smoker) and loss of a $1,500 HSA contribution.
  • Screening included blood draw, nicotine test, and blood pressure readings.
  • Programs appear to comply with ACA and HIPAA rules.
  • The EEOC believe Honeywell's program violates the ADA's requirement that medical inquiries be job related and based on a business need.
  • The EEOC argues that the biometric screening is a medical exam that is involuntary due to the high penalty for not participating.
  • The EEOC also contends Honeywell violates GINA's prohibition on gathering family medical history by inducement because they required spouses to participate.

As a physician, I understand the fear of being sued. In medicine, as in life, not every outcome is good; people get bad news, people suffer, people die. There is nothing stopping a patient from suing because they don't like the diagnosis, the treatment or the outcome. The bigger question is, "Is my wellness program compliant with ACA law and if sued (for whatever reason by whomever) what is my potential liability?" The EEOC has brought at least three separate suits in the last 6 months, claiming that what they consider to be "involuntary" requirements to complete these assessments tools violate the ADA. So, it does appear things have changed and the EEOC has decided to press forward their contention that wellness programs must be voluntary, defined as not requiring participation nor penalizing employees who do not participate. Obviously, this interpretation poses concern for any health-contingent, activity based or standard based program with incentivizes, especially incentives integrated into health insurance premiums, health savings accounts, or salaries. The EEOC appears to consider incentives outlined in the ACA (putting at risk up to 30% of the premium equivalency and with tobacco up to 50%) to be excessive making a program no longer voluntary, although they have not provided a specific level of incentive that triggers this voluntary/involuntary issue. To complicate matters worse, the Internal Revenue Service, Department of Labor and Health & Human Services have all issued wellness regulations that support the ACA taking a stance different from the EEOC.

So, what's the answer? Bottom line, the courts will eventually answer the question. What is important is that your program is compliant with current ACA law, your program has been evaluated by competent legal and wellness professionals and you have some idea of the risk vs. reward associated with your program's goals and objectives. Your program should be consistent with your organization's overall mission and vision and part of your overall business strategy. If your program is focused on helping your Plan members, provides programs and services that improve health and wellbeing, is viewed as an additional benefit and structured to make your workplace a better place to work then I wouldn't worry.

I learned early in my medical career, people usually didn't sue if you had a sincere interest in their health, you listened, you empathized with them and you did your very best. We also know that too large a penalty undermines personal motivation - a key success factor for anyone changing their habits and lifestyle. The best wellness programs motivate, are fun, focus on the environment and culture making the workplace a safe, comfortable, supportive and pleasant place to be. If you want to avoid being sued that is what your program should strive for.

Posted December 03, 2014

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