We are a country where each person is equal under the laws; and we have a lot of laws. In fact, we have so many laws that it is not uncommon to have laws that seem to contradict each other. This is what appears to have happened with the Affordable Care Act (ACA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).
The ACA has two major goals. These goals are to provide everyone with affordable health insurance and to decrease health care costs. One of the ways to decrease health care costs is to keep patients healthy enough with outpatient care to keep them from having to come into the hospital. In hopes of keeping patients out of the hospital, many companies are providing wellness programs to their employees to encourage healthy behavior; it is hoped that healthy behavior will lead to decreased costs for health care in the future.
In accordance with the ACA's desire to keep people healthy, Honeywell International, Inc. ("Honeywell") offered their employees a High Deductible Health Plan ("HDHP") which was a Honeywell sponsored self-insured group plan. Within the HDHP was a wellness program which would keep the participants informed of their on-going health status, monitor and improve various health goals, and, hopefully, reduce future health claim costs. Employees who wished to participate in the program had to agree to undergo biometric testing which included blood pressure, height, weight, waist circumference, and cholesterol, glucose, and nicotine levels. This testing would be done for free and the data would be collected and sent to an independent health management company where the data would be aggregated and sent back to Honeywell. Honeywell would not receive any information on individual employee test results.
If an employee chose to not participate, he would have to pay a surcharge for the company's high deductible health plan. This surcharge would go towards their annual health insurance contribution. Employees who did participate would be eligible for a health savings account (so long as the employee's annual salary was below $100,000). Honeywell would give an annual contribution to this Health Savings Account which could be up to $1,500.
Honeywell employees and their spouses who were covered under the HDHP were also subject to a $1,000 surcharge if they were smokers. Employees who refused to undergo the biomedical testing were presumed to be tobacco users and were thus subject to the nicotine surcharge.
The legal issue arose when three Honeywell employees filed complaints about the surcharges with the Equal Employment Opportunity Commission alleging that the Honeywell wellness program violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). These employees were asking for an injunction to keep Honeywell from forcing them to participate in the required biometric testing by threatening the surcharges for failure to participate. The EEOC was asking for the injunction because the time required to get a verdict thru the usual legal process would prevent the agency from carrying out their enforcement statutes as intended by Congress and the Honeywell employees would lose their right to decide on the biometric testing without coercion.
Interestingly, all three of these employees had submitted to the biometric testing before the lawsuit was filed.
During the course of arguments, the EEOC alleged that Honeywell was violating the ADA because the biomedical testing required for the wellness program was an involuntary medical examination that was not job related. The ADA states, "[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. section 12112(d)(4)(A)
Honeywell felt that their wellness program came under a safe harbor provision of the law which allows entities "establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law." Honeywell also argued that the EEOC enforcement powers must not take precedence over Congresses' express approval of surcharges used in support of wellness programs outlined in the Affordable Care Act.
The EEOC also claimed that the Honeywell wellness program violated the GINA because it required the collection of medical information from covered spouses who are considered "family members" under GINA.
Honeywell says that the biometric tests have nothing to do with "analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes." 29 U.S.C. section 1191b(d)7. As such, no violation of GINA occurred.
The EEOC argued that Honeywell would not be harmed by the injunction since the employees were only seeking to avoid the surcharges, not the biomedical testing itself.
Honeywell argued that the employees would be irreparably harmed if the injunction was granted since these employees would no longer be allowed to participate in the wellness program until the next open season. These employees would have to pay a lump sum surcharge. Any loss of revenue to Honeywell due to an injunction would result in increased costs of health care contributions for all Honeywell employees.
Honeywell also felt that the EEOC could continue their investigation of the Wellness Program and, thus, will not suffer any harm. Any harm suffered by the Honeywell employees would be monetary in nature so they would have an adequate legal remedy if EEOC were to prevail on the merits of their suit.
The court decided that there would be no irreparable harm to either the EEOC or to the Honeywell employees if the injunction was not granted. As to the EEOC, they could still fulfill their enforcement obligations by continuing their investigation of the wellness program. The EEOC was not able to demonstrate that the biometric testing would jeopardize the employee's right to privacy of their health information. Even if the EEOC was to eventually win on the merits, they would have an adequate legal remedy of monetary damages.
This case demonstrates that there may be a conflict between the ADA and the ACA as it relates to surcharges used in the design of wellness programs. The injunction was not granted but the Court will hear arguments to determine if parts of the ACA relating to wellness programs violate the ADA or GINA. Stay tuned.
Darryl Weiman's website is www.medicalmalpracticeandthelaw.com
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