After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought its third lawsuit in about two months, alleging that the employer’s wellness program was not “voluntary” due to the “large” and “substantial” penalties to those who chose not to participate. Because the program was involuntary, the disability related inquiries and medical examinations within the program violated the ADA, according to the EEOC. EEOC v. Honeywell International, Inc. (D.MN, filed October 27, 2014.).

The lawsuit also alleges that Honeywell’s wellness program violates GINA’s proscription against providing inducements to an employee to obtain that employee’s family medical history. According to the EEOC, by penalizing an employee if the employee’s spouse does not participate in the program’s biometric screening, which could yield information related to conditions such as hypertension and diabetes, Honeywell’s program is providing a financial inducement to obtain genetic information. i.e., family medical history.

The EEOC is seeking a temporary restraining order enjoining Honeywell from imposing any penalty or cost on an employee who declines to participate in biometric testing or whose spouse declines to participate in such testing, and from providing any inducement to an employee’s spouse to participate in the testing.  The hearing on the temporary restraining order is next week.

We have posted previously about the EEOC’s two earlier lawsuits.  In those two lawsuits, according to the EEOC’s allegations, the penalty for not participating in the employer’s wellness program was that the employee needed to pay 100% of the health insurance premium, a penalty which the EEOC described as “steep,” “enormous,” and created “dire consequences.”

In the Honeywell case, according to the EEOC’s filing, employees who did not participate in the program would pay up to $3.500 in “direct surcharges” as well as lose “up to $1,500 in contributions” to the employee’s health savings account.

Honeywell’s press release concerning the lawsuit refers to the EEOC’s lawsuit as “frivolous” and states that its “wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines.” The company added that it is “disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.”