For the third time in recent months, the Equal Employment Opportunity Commission has launched legal action against a private employer, claiming discrimination on the part of the company’s wellness program.

The EEOC Monday filed a memorandum in Federal District Court in Minnesota asking for a temporary restraining order against Honeywell, alleging that wellness programs sponsored by Honeywell violated both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

“The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the health care marketplace and with the core intent of the Affordable Care Act to provide expanded access and improved healthcare to all Americans,” the company said Wednesday.

The EEOC claims that the wellness program incentives violate the ADA because employees are penalized in order to induce them to go through medical examinations that are not job-related or consistent with business necessity. Voluntary health exams receive an exemption to the rule, but the EEOC says these exams are not voluntary because Honeywell imposes a penalty on employees who decline to participate. 

Honeywell says the incentives provided are “specifically sanctioned” by both the Health Insurance Portability and Accountability Act and the ACA. “No Honeywell employee has ever been denied health care coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs,” the company says, in a statement.

Also see: EEOC sues second employer over wellness program

“Our primary concern is that it apparently is no longer enough for an employer-sponsored wellness plan to comply with the applicable requirements under the ACA,” says Gretchen Young, senior vice president for health policy with the ERISA Industry Committee. “The EEOC has apparently decided that it will be playing by a different set of rules, with no forewarning to companies whatsoever.”

“What’s concerning about it, with this recent legal action, is that it’s sending a mixed message because both HIPPA and ACA encourage these programs, and now we’re taking a big step back with EEOC’s lawsuit with Honeywell,” says Brian Marcotte, CEO and president of the National Business Group on Health.

The EEOC has been asked on numerous occasions to issue guidance to help companies get their programs in compliance with the law, Marcotte says, and recommends that policy makers provide examples of a wellness program that is compliant not only with the ACA and HIPPA, but also with GINA and ADA.

According to NBGH, 95% of employers offer a health risk assessment, biometric screening or other wellness program in 2014, and about three-in-four employers use incentives to engage employees in these programs.

The challenge is, many of these programs have been in place for years, Marcotte says.

“It’s hard for all these companies to put the brakes on because EEOC picked one company to sue,” Marcotte says. “I think it’s business as usual until more clarification comes out of this.”

Already this year, two Wisconsin-based companies, Flambeau and Orion Energy, have received similar EEOC lawsuits for wellness programs which include biometric screenings.

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