Encouraging employer programs for health and prevention with one hand, the federal government is trying with the other hand to stake out a limit to what can be required of employees. And it's getting a bit fractious in the wellness space.
The Equal Employment Opportunity Commission is challenging the engineering and manufacturing conglomerate Honeywell, asking a federal court in Minneapolis to halt biometric screening requirements and related penalties from taking effect in its health plan.
In the third such case this year, the EEOC argues that Honeywell's penalties for non-participation in health risk screenings -- in the thousands of dollars, according to two employees -- violate the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
Honeywell's wellness program in effect levels penalties of up to $4,000 on employees and covered-spouses who decline to take health risk assessments that measure cholesterol, glucose, blood pressure and waist circumference or disclose smoking status, according to an investigation by the EEOC's Chicago office, following complaints by two workers in Minnesota.
Failure to participate in Honeywell's health risk assessment means employees will lose $1,500 in health savings account contribution, and be on the hook for a $500 surcharge and a $1,000 per-beneficiary tobacco surcharge, according to the EEOC. Honeywell's program "imposes a penalty upon employees to make them participate in the biometric testing," is not related to the nature of the jobs, and "is not voluntary."
If that is the case, the agency argues, the company's program runs afoul of the ADA and GINA, the former prohibiting employers from requiring employees to go through health exams unrelated to essential job function and the latter barring the collection of family medical history as a factor in employment terms.
"Honeywell's biometric testing is an unlawful medical examination of current employees," the EEOC wrote in its petition for an injunction.
Honeywell, based in Morristown, New Jersey but with roots and large operations in Minnesota, is defending its approach.
"The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace and with the core intent of the Affordable Care Act to provide expanded access and improved healthcare to all Americans," Honeywell said in a media statement.
Honeywell added that the incentives in its wellness programs are pro-consumer and already delivering "demonstrably better" health outcomes for employees and families.
"Honeywell's wellness plan incentives are in strict compliance with both HIPAA and the ACA's guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs," the statement continued. "No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs."
Whatever the outcome of this case, disputes over workplace wellness programs and incentives are bound to continue as more Americans are offered various types of payments and rewards for completing health risk assessments and healthy behaviors.
There already have been pockets of backlash against wellness programs, with critics like the consultants Al Lewis and Vim Khanna calling them tantamount to coercion, and some large, organized workforces, like Penn State University professors, succeeding in quashing proposals for incentive-based risk assessments.
The EEOC, for its part, is trying to draw a line in the sand between incentives and compulsion, to balance anti-discrimination law with the ACA's allowance for employers to vary premiums by up to 30 percent based on wellness participation. Along with the Honeywell suit, the EEOC is suing Wisconsin-based Orion Energy Systems on behalf of an employee who refused to participate in a health risk assessment and was subsequently fired.
Some legal experts, though, think there may be ambiguity and inconsistency between the ACA and non-discrimination law.
"Is a plan that varies premiums by 30 percent truly voluntary?" asked University of Michigan law professor Nicholas Bagley in an Incidental Economist blog post. "Might such a plan violate the ADA, even if it was authorized by the ACA?"