Yesterday, in an extraordinary move, the EEOC filed a petition
for a temporary injunction against Honeywell International, Inc. in the
U.S. District Court of Minnesota. The
reason? Honeywell’s implementation of
biometric testing for employees and their spouses as a part of its medical
insurance program. According to the EEOC
petition, if employees or their spouses fail to participate in biometric
testing, they will lose Honeywell’s contribution to their HSA and face up to
$2500 in health insurance surcharges. The EEOC argues that Honeywell’s program,
which is scheduled to start biometric testing this month, violates the Americans with
Disabilities Act and the Genetic Information
Nondiscrimination Act. Like its two recent wellness
program lawsuits, this action, which asks the court to stop the testing,
breaks new ground for the EEOC.
The ADA prohibits employers from requiring employees to
submit to medical
examinations that are not intended to determine whether an employee can
perform the essential functions of the job.
It also restricts the health-related information employers can seek or
obtain and prohibits medical or health-related testing that is not job-related
or consistent with a business necessity.
GINA prohibits discrimination on the basis of genetic
information in “any aspect
of employment.” GINA also prohibits
employers from obtaining family
medical history information – including for wellness programs and medical
insurance – if the information could be used to affect a term or condition of
employment. Medical insurance premiums
are viewed by the EEOC to be a term or condition of employment. In its petition
to stop Honeywell’s testing, the EEOC argues that the inducements and penalties
related to spouses’ participation violate GINA.
According to its petition, the EEOC is seeking an
injunction, rather than simply filing suit against Honeywell, because the agency
and Honeywell employees will be “irreparably harmed” if biometric testing goes
forward.
Although not referenced in the EEOC’s legal action,
Honeywell might also want to take a look at laws
that prohibit discrimination against employees because of their consumption of
lawful products during non-work time.
These laws protect employees’ right to consume products – like tobacco –
while off duty, and restrict employers’ ability to discipline, discharge, or
impose other negative consequences on employees because of their consumption. Statutes related to lawful consumable products
vary from state to state, but some, arguably including the statute in
Honeywell’s home state of Minnesota, could be the basis for additional claims
against Honeywell.
At this writing, Honeywell has not responded publicly to
the petition. We will watch for its
response and the court’s decision with great interest, and keep you posted.
Posted by: Judy Langevin and Kate Bischoff
