Corporate Wellness plan unde rfire from the EEOC

EEOC goes on offense against corporate wellness plans

            The American Bar Journal yesterday noted an interesting new lawsuit brought by the federal government.   http://www.abajournal.com/news/article/eeoc_sues_honeywell_says_wellness_program_medical_testing_violates_ada

The Equal Employment Opportunity Commission filed a lawsuit in United States District Court in Minnesota against Honeywell Corporation alleging that the Corporation’s wellness program violates the Americans with Disabilities Act.

According to several press accounts, the lawsuit seeks an order putting a halt to a biometric testing program that could reveal lifestyle and health issues of employees and their spouses, such as smoking and diabetes, and imposing a financial penalty on those who don’t participate, according to the Associated Press and the Minneapolis Star Tribune.

The lawsuit, while technically probably within the reach of the ADA, marks a significant step by the EEOC, potentially at odds with other federal policy. The Affordable Care Act, also known as Obama Care, places significant emphasis on transitioning health care payments away from paying for the “sick” to “investing in health and prevention.” Corporate wellness programs, smoking cessation, and weight management programs re often widely touted as examples of the transition to preventative care. Indeed, former Obama Chief of Staff Rahm Emanuel and current Mayor of Chicago quickly implemented, shortly after becoming mayor, a wellness program for City employees whereby non-participating employees pay an additional $50/month towards their healthcare. http://cnsnews.com/news/article/chicago-pushing-wellness-program-its-employees

Since the passage of the ACA, there has been an explosion in the healthcare provider sector, of employer offerings, everything from physician and even non-physician led wellness programs, healthy choices programs, smoking and obesity cessation programs, to onsite clinics. This niche has attracted the attention and investment of the likes of physicians, nutritionists, physical trainers and lifestyle coaches, and insurers such as Aetna and Cigna.

The EEOC’s Honeywell lawsuit may cause a backlash against such providers. However, it may also cause employers to rethink the terms of their ERISA self-funded benefit plans. Whether the EEOC’s interpretation can be reconciled with the ACA remains to be seen, but Honeywell, responding to the lawsuit, noted that its program complied with both HIPAA and the ACA.

California employers may find the issue familiar. Beginning in the late 1990’s, California’s Fair Employment and Housing Commission began enforcing the California Fair Employment and Housing Act’s s disability discrimination provisions against employers using pre-employment physicals.

* McClelland Advocacy is a Sacramento-based law firm with expertise in healthcare litigation and corporate disputes, and in public policy and Constitutional litigation and challenges to state and local government actions.

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