In July, the AARP Foundation and Garrison, Levin-Epstein, Fitzgerald & Pirrotti law firm filed a class-action lawsuit against Yale University, alleging that the employee-wellness program at the Ivy League school violates the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
The Health Expectations program requires roughly 5,000 union employees and their spouses to submit to invasive medical tests and divulge their insurance claims data to multiple wellness vendors. Those who refuse are fined $1,300 a year, which is deducted directly from employees’ paychecks in $25 weekly increments. The complaint states that wellness programs that solicit confidential medical and genetic information must be voluntary under the ADA and GINA.
While Yale officials declined to comment, Dara Smith, senior attorney at the AARP Foundation, claims that this practice places a heavy burden on employees wishing to preserve their civil rights.
“Think about people with invisible disabilities like mental-health conditions, [such as] depression, that they really don’t want people to know about,” says Smith. “If their employer gets a hold of this health information, they can use it to discriminate against them.”
These employees may not be promoted or assigned special tasks or projects that expose them to senior leaders. Managers may also fear these workers will “fly off the handle at work,” she says, or fire them, falsely assuming they can’t handle demanding job tasks or are key contributors to the company’s escalating healthcare expenses.
Although these scenarios appear far-fetched, Smith says they are common. So are incentives, which she says are also illegal because they “still financially disadvantage employees who don’t want to reveal their information or adhere to an employer-mandated testing regime.”
Create a Movement
The primary goal of the lawsuit is two-fold: to stop employee fines and obtain reimbursement for those who already paid the fine, adds Josh Goodbaum, partner at the Levin-Epstein law firm.
“We’re not making a policy argument,” he explains. “This is a legal argument.”
Goodbaum says it’s important for HR to ensure that its wellness program is voluntary and that employee health information is protected by HIPAA and segregated from company decision-makers to avoid potential employee discrimination.
Before any controversial practice is rolled out, solicit employee reactions via focus groups or employee-resource groups, adds LuAnn Heinen, vice president of wellbeing and workforce strategy at the National Business Group on Health, which addresses national health-policy issues and shares best practices in healthcare management.
Then create a “movement,” she says. “Make it fun, make it social … Leverage the assets of the workplace.”
Legal or not, she says, many large employers rarely choose a wellbeing strategy that “causes pain” for workers because they seldom achieve program goals, sustain programs or build employee engagement.
“[Employee] wellbeing is a competitive advantage and an important piece of your workforce strategy,” Heinen says. “Process becomes important. In the long run, a winning strategy is a hearts and minds approach.”