Beware the Laws Impacting Wellness Programs
A recent class action lawsuit filed by certain union employees of Yale University bears monitoring.
The lawsuit (Lisa Kwesell, et al. v. Yale University, Case No. 3:19-cv-1098) was filed in the U.S. District Court for the District of Connecticut on July 16, 2019. The class action was brought on behalf of approximately 5,400 current and former employees of Yale University who were required to participate in Yale’s Health Expectation Program (HEP), or pay a fine of $25 per week via payroll deduction, adding up to $1,300 annually.
Under this wellness program, union members and their spouses are required to undergo an array of medical screenings, procedures, vaccinations, and examinations. In addition, the employee and/or spouse are required to consult with a health coach; those with abnormal lab findings or chronic medical conditions are required to consult with a health coach a minimum of three times per year. Further, vendors administering the program glean extensive health information and insurance claim data of the participants, even though some individuals did not authorize release of their medical information.
The complaint alleges that Yale’s Health Expectation Program violates the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). As a reminder, the ADA requires that any collection of medical information be “voluntary” unless the collection is used in conjunction with a bona fide medical plan, and employees are neither required to participate nor penalized for non-participation. For purposes of determining whether a program is voluntary in accordance with the ADA, a wellness program that includes disability-related inquiries or medical examinations (including inquiries or examinations that are part of a health risk assessment) is deemed to be voluntary as long as employees are not required to participate. For employees who elect not to participate in the program, then:
- Any group health plan coverage or particular benefit packages cannot be denied or limited to the non-participating employees; and
- The employer cannot take any adverse employment action or retaliate against the non-participating employees.
GINA prohibits collection of genetic information, including family medical history. In addition, an individual’s or his/her family member’s genetic information cannot be used for eligibility and rating purposes, except to the extent that it is based on a manifest condition. Plans are also prohibited from altering a premium or contribution amount based upon an individual’s genetic nature. Further, GINA prohibits use of health risk assessments for enrollment or underwriting purposes. If the intent of utilizing a health risk assessment is to collect genetic information and family medical history, then the assessment must be administered after the effective date of coverage, and cannot result in any kind of financial or benefit reward or detriment.
Notably, the American Association of Retired Persons (AARP) brought forth this legal challenge against the Yale University’s wellness program. As a reminder, AARP successfully challenged the ADA and GINA wellness regulations issued by the Equal Employment Opportunity Commission (EEOC) in 2016 relating to voluntary participation and incentives. This resulted in a District Court decision to vacate a portion of the EEOC’s wellness program rules. The EEOC formally withdrew the incentive portion contained in both the ADA and GINA regulations in December, 2018. According to the EEOC’s Spring 2019 Regulatory Agenda, regulations addressing incentives and/or other matters are not expected to be released until December 2019.
While this class action lawsuit is in its infancy, and we don’t know what the outcome will be, it nevertheless important to review your wellness program to ensure that it complies with each of the laws impacting it. We will keep you updated as this lawsuit progresses.
The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.