Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 28

Designing Wellness Programs That Respect Employee Privacy

EEOC will scrutinize them very carefully. In
addition, the EEOC is very wary of adding
requirements to spouses and children who
do not work at the employer.
A Potential Safe Harbor for
Employers from the ADA

health problems, many of which are out of
their control, appears to be unacceptable
to the EEOC.
Wellness Programs
Allegedly Violating the GINA

Another area of concern for the EEOC
related to wellness programs involves violations of GINA. The EEOC raised a GINA
violation as a claim in their recent complaint in EEOC v. Honeywell.35 In Honeywell, the defendant had a health benefit
plan for employees that included a combination of a high deductible health plan
and health savings accounts.36 In early fall
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 or be penalized
for failure to do so.37 The biometric test included a blood draw, which would be used
to screen the employees’ and their spouses’ for blood pressure (systolic and diastolic), HDL and total cholesterol, glucose, and
height, weight, and waist circumference
(BMI).38
The penalties for failing to take the biometric tests included:
a)
Losing HSA contributions from
Honeywell, which range up to
$1,500 depending on the employees’ annual base wage and type of
coverage;
b) A $500 surcharge that will be applied to their 2015 medical plan
costs;
c) $1,000 “tobacco surcharge,”
A
even if the employee chooses not
to go through the biometric testing for reasons other than smoking;
and
d) A $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.39

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In total, an employee could suffer a penalty up to $4,000 through surcharges and
lost HSA contributions.40 Honeywell initially told its employees that it would use
the results of the biometric tests to impose “goals” on the employees where they
would be required to reduce their risk factors, such as their blood pressure, or lose
their HSA contributions.41 Although Honeywell has informed its employees that it has
delayed this part of its program for 2015,
it also has stated that it has not decided
whether to pursue this aspect of the program in 2016.42
In addition to bringing ADA claims similar to the ones the QS