EEOC Challenges Wellness Program Penalties

October 31, 2014 ( – The Equal Employment Opportunity Commission has asked a federal court to stop an employer in Michigan from imposing penalties on employees who do not participate in biometric testing.

The EEOC filed the action in the United States District Court for the District of Minnesota. Complaint documents show the EEOC wants defendant Honeywell International Inc. to stop imposing penalties on employees and spouses who do not participate in biometric testing as part of a mandatory wellness program.

The text of the complaint cites the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act in its request to obtain a temporary restraining order and a preliminary injunction enjoining defendant Honeywell from seeking to impose penalties on employees who do not participate in its biometric testing, or whose spouses do not participate.

According to the EEOC, Honeywell offers a health benefits plan for employees, requiring employees to contribute to this plan through payroll contributions. Employees at Honeywell also can maintain health savings accounts (HSA).

On about August or September 2014, Honeywell announced to its employees that they (and their spouses if they had family coverage) were to undergo biometric testing by a Honeywell vendor for the 2015 health benefit year. The complaint says the biometric testing included a blood draw. Through the biometric testing, the employees’ and their spouses’ results would be screened for things like blood pressure, cholesterol level, and glucose level. Height, weight and waist circumference information would also be used to develop a body mass index reading. The biometric screening also checked for nicotine.

Importantly, the EEOC says employees will be penalized if they or their spouses do not take the biometric tests. Penalties include the employee losing HSA contributions from Honeywell, which range up to $1,500 depending on the employees’ annual base wage and type of coverage. The employee also is charged a $500 surcharge that will be applied to their 2015 medical plan costs. Additionally, the employee will be charged a $1,000 “tobacco surcharge,” even if the employee chooses to not go through the biometric testing for reasons other than smoking. Finally, the EEOC’s complaint says, the employee will be charged another $1,000 “tobacco surcharge” if his or her spouse does not submit to the testing, even if the spouse declines to participate for reasons other than smoking. In total, an employee could suffer a penalty of up to $4,000, the EEOC says.

The EEOC says these penalties make the proposed medical testing involuntary, and therefore the testing violates the Americans with Disabilities Act.

The action against Honeywell resembles two earlier complaints from the EEOC. In early September, the EEOC filed its first lawsuit challenging an employer’s wellness program under the Americans with Disabilities Act. In that case, the EEOC says that Orion Energy Systems, based in Manitowoc, Wisconsin, violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a so-called “wellness program,” which was not voluntary, and then by firing the employee when she objected to the program.

Another action filed in early October charges Flambeau, Inc., a Baraboo, Wisconsin-based plastics manufacturing company, with similar violations.

The full text of the most recent complaint against Honeywell is available here.