Can an employer require employees to undergo biometric testing or suffer penalties under their health benefit plan as part of a corporate wellness program? On November 3, U.S. District Judge Ann Montgomery refused to grant the EEOC’s petition for a temporary restraining order prohibiting Honeywell International, Inc. from continuing such a practice—so maybe.

Under Honeywell’s plan, employees must undergo screening for blood pressure, HDL and total cholesterol, glucose, and height, weight and waist circumference. The blood draw also checks for nicotine or cotitine. If an employee (or their spouse—if participating in family health coverage) refuses to undergo the biometric test, the employee loses Honeywell’s health savings account contributions, and pays a $500 general surcharge and a $1,000 tobacco surcharge. It is important to note that the penalties are not related to an employee’s test results. An employee is penalized only for refusing to participate. Honeywell stated that the purpose of the biometric testing is to provide employees with information to help them make better health decisions; the company never actually sees the test results. Honeywell also noted that the Affordable Care Act expressly encourages corporate wellness programs.

On October 27, 2014, the EEOC filed a Petition claiming that Honeywell’s plan included an unlawful medical examination that violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. The EEOC sought a TRO forcing Honeywell to stop imposing any penalty or cost upon an employee who declined to participate in the biometric testing. Judge Montgomery denied the EEOC’s request to immediately stop the testing and penalty provisions, holding that Honeywell could refund any penalties that were improperly collected if she ultimately ruled in the EEOC’s favor. The lawsuit will now proceed without an injunction.

This suit is the third by the EEOC challenging corporate wellness programs around the country. Employers should be aware that the EEOC is focusing on any medical testing of employees that is connected to penalties under a health benefit system. In this case, it was not alleged that there would be any dismissal of an employee for failing to participate in the biometric tests, but instead only possible extra costs under the plan. Again, Honeywell can continue its wellness program but the EEOC’s lawsuit challenging the program will also continue.