United States: Wellness Programs And Biometric Screening: Lessons From Recent EEOC Attacks

For employers, a healthy workforce can mean improved productivity, lower absence rates, and a reduction in health insurance costs. In an effort to realize these rewards, many employers have implemented wellness programs, including programs that build in incentives for employee participation. One popular type of program asks employees to undergo health screenings, also known as "biometric testing." Although these tests vary, they typically measure an employee's blood pressure, cholesterol and glucose levels, and body mass index. Test results are provided only to the employee. If the employee agrees to be tested, he or she is rewarded. If not, penalized. The theory behind such a program is that a well-informed employee is more likely to take proactive steps to improve his or her health. But as three employers have learned recently, programs that request employee biometric testing may be attacked as unlawful under the Americans with Disabilities Act (ADA) and other laws.

The Equal Employment Opportunity Commission (EEOC) has taken issue with the biometric testing portion of three companies' wellness programs. Of chief interest is the agency's latest attempt to block implementation of one company's inclusion of voluntary biometric testing as part of its annual re-enrollment process for employee health care benefits. On October 27, 2014, the EEOC sought a temporary restraining order (TRO) to block implementation, under the theory that the program violated the ADA, which prohibits employers from requiring employees to undergo health exams unrelated to their essential job functions, and the Genetic Information Nondisclosure Act (GINA), which bars employers from requesting information "about the manifestation of a disease or disorder in an employee's family member." The two program features at issue in the TRO proceeding were:

(1) the company's plan to impose stiff penalties on employees who refused to be tested, which could be as much as $4,000 per employee (including surcharges and lost health savings account funds)—which penalties the EEOC claimed rendered the "voluntary" biometric screening tantamount to a compulsory medical examination and a disability-related inquiry, thereby violating the ADA; and

(2) the company's plan to ask not only employees, but also all spouses of employees enrolled in family benefit plans, to be tested for blood pressure, cholesterol and glucose levels, body mass index, and the presence of nicotine and cotinine, a metabolite of nicotine—which testing the EEOC claimed ran afoul of the GINA.

Although the court has refused to grant the TRO, the case is still ongoing. Given the EEOC's position about the illegality of certain biometric testing programs, as well as the agency's apparent interest in challenging them, all employers should review their own health-screening incentive programs to make sure they are in line with applicable laws. Here are some questions to consider:

Does your program comply with the ADA?

First, make sure your program only rewards or penalizes employees for their decision on whether to undergo health screening, not for the results of that screening. Under most circumstances, the ADA prohibits employers from making any disability-related inquiries. This means that unless your inquiry is job-related, you should never ask an employee about the results of his or her health-screening.

Second, be aware of the existing tension between the ADA and the Affordable Care Act (ACA). On one hand, the ADA prohibits an employer from inquiring about an employee's health conditions. On the other hand, the ACA endorses employee health screenings and the use of incentives to persuade employees to participate. In fact, the ACA specifically contemplates employers' use of wellness incentive programs, as the statute provides that employers may implement a maximum reward or penalty of up to 30 percent of the total cost of health care coverage (including both employer and employee contributions), and up to 50 percent of that total cost for incentives designed to prevent or reduce employee tobacco use.

While the agencies and courts are sorting out this ADA-ACA tension, and until further guidance is provided to employers on how to reconcile that tension, employers should avoid imposing high penalties on employees for refusing to participate in health screenings. As described above, a wellness program that imposes such penalties may render the program subject to attack under the ADA, even if the penalties fall within ACA-defined permissible parameters.

Does your program comply with GINA?

GINA prohibits employers from: (1) requesting genetic (i.e., DNA) information about an employee, and (2) requesting information "about the manifestation of a disease or disorder in an employee's family member." Most wellness programs will not be subject to attack under the first provision, as biometric screenings generally do not include any DNA testing. But a potential for liability lurks in the second, more expansive, GINA prohibition. Presumably, the results of a cholesterol or glucose test—both of which are commonly included in biometric screenings—could indicate "the manifestation of a disease or disorder." Given the broad protections afforded to family members under GINA, employers are best advised not to penalize an employee for his or her family members' refusal to undergo a health screening.

Stay tuned here for reports on further developments in this area.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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