Tuesday, October 28, 2014

EEOC Seeks Injunction to Stop Biometric Testing at Honeywell

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

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