Straight Talk About the Yale University Case

The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

On July 16, 2019, a class of employees sued their employer, Yale University, on the ground that Yale’s employee wellness program violates the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). After providing some background about the wellness program at issue, I will offer my insights as to what I believe this case means to the workplace wellness industry.

Yale’s Alleged Wellness Program

According to the complaint, Yale negotiated through the collective bargaining process its “Health Expectation Program” or “HEP” with two of its unions, Local 34 and Local 35. These unions represented individuals who were clerical, technical, cafeteria, maintenance and physical plant employees for Yale. Under terms of the HEP, union members and their spouses were required to undergo a series of medical examinations, testing and vaccination. If an employee or spouse failed to complete the requirements pursuant to the following chart, the employees were fined $25 per week, or $1300 per year.

Based on the chart, employees were expected to see their primary care physician within a year of enrolling in the group health plan and then every two or three years after that, depending on the age of the employee or spouse. Whether an employee or spouse was required to undergo any of the exams depended on his or her age and the last time he or she had such an exam. Once the employee or spouse completed the items on the list, he or she had to submit a completed “Health Action Credit Form” to avoid the $25/week fine.

Yale’s program also has a coaching component. Yale’s wellness vendors assign health coaches based on information gleaned from health insurance claims data of HEP participants. Employees or spouses are assigned a health coach based on certain risk variables, such as gaps in care, multiple chronic conditions, comorbid conditions and lab values out of range, as well as having a diagnosis of diabetes, heart disease, hyperlipidemia, chronic obstructive pulmonary disease, heart failure, or hypertension. An employee or spouse assigned a health coach must consult with that coach at least three times per year. The complaint alleges that if an employee or spouse gave a “wrong” answer to the coach’s questions, the coach would “harass” individuals with information and suggestions. It is unclear from the complaint whether meeting the coaching requirement was tied to the $25 per week penalty.

The Basis for the Lawsuit

The employees are suing Yale University as representatives of a class of potentially 5,400 members. Thus, this is a potential class action, assuming the court certifies the class. The plaintiffs, who are backed by the AARP Foundation (the same organization that sued and won against the EEOC regarding its incentive rules in 2016), make the following contention about the $25 per week fine:

Compliant at 15, paragraph 53.

Thus, the employees raise the issue of trading the privacy of their health information for a financial benefit that for many employees, according to the complaint, felt coercive. One employee identified in the complaint states that to her, “voluntary is not paying.” For that employee, a wellness program would not financially incentivize employees to complete a health risk assessment or medical exam. Complaint at 18, paragraph 66. Interestingly, the complaint states that the Yale police union was able to reach an agreement with the university that did not require the police union members to pay a fine for not participating in the HEP. Complaint at 20, paragraph 74.

The employees also complained about having to share their health and genetic information with Yale’s wellness vendors. For example, one employee refused to sign the “HIPAA waiver” and yet information was still shared with the coaching vendor and he was assigned a health coach. The complaint alleges that such transfer of health information about employees and spouses violates both ADA and GINA. Complaint at 14, paragraphs 49-50.

The employees seek from the court:

1. to be designated as a class;
2. a declaration that Yale’s wellness program violates the ADA and GINA;
3. an injunction prohibiting Yale from continuing to impose a $25 per week fine;
4. an injunction prohibiting Yale from causing employees’ and their spouses’ insurance claims data to be transferred to Yale’s wellness vendors without the employees’ and spouses’ specific consent;
5. a requirement that the medical and genetic information previously collected be purged;
6. an award of economic and noneconomic damages; and
7. attorney fees and expenses.

Compliant at 29.

Yale will likely respond to the complaint either with an answer or a motion to dismiss. That court filing may occur in August or September 2019. At that point we will be able to learn something about Yale’s position on its employee wellness program.

What the Yale Lawsuit Means for the Workplace Wellness Industry

Although the lawsuit against Yale University is in the very early stages of litigation and is in regard to Yale’s specific wellness program, here are five lessons that we can learn even at this juncture:

1. What constitutes a “voluntary” wellness program is currently subjective under the ADA. Regardless of the outcome of this lawsuit, some employees felt strongly enough to file a complaint with the EEOC that a $25 per week penalty did not fall within the ADA’s “voluntary” requirement. Until the EEOC creates new rules about what amount might fall within the ADA’s “voluntary” requirement, employers must be vigilant in assessing their employees’ perceptions on the use of incentives for health risk assessment or medical exam participation.
2. Employees are willing to complain, and there are law firms and organizations like the AARP who are willing to help them. The word is starting to get out to employees, plaintiff’s law firms and organizations like the AARP that incentives tied to health information collection could infringe on employee privacy rights under the ADA and GINA.
3. If an employee complains to his or her employer about an incentive structure, listen. We don’t know if and when any of the employees in the Yale University case complained to their employer or union about the incentive program. However, if an employee voices concern over a wellness program incentive, it is prudent to hear their concern and try to address it by explaining your position, offering alternatives or asking for their input on how to improve the program.
4. The concept of a group health plan wellness program and a non-group health plan wellness program is still confusing for a lot of people. The wellness program at issue in this case is a group health plan wellness program. That means that two different titles of GINA (Titles I and II) likely apply to this program. The complaint only references Title II, which applies to employers. I would not be surprised if we see mention of Title I, which applies to health plans, in future pleadings. Also, because this is a group health plan wellness program, HIPAA privacy and security rules apply. Those rules allow for use and disclosure of health information between covered entities and business associates (the wellness vendors were likely business associates) without authorization in some circumstances, which may apply here. There are restrictions under HIPAA privacy rules for using and disclosing genetic information, but those restrictions concern the manifestation of disease or disorder in family members of the individual “not covered under the plan.” See 45 CFR § 164.502(a)(5); 81 Fed. Reg. 31143, n. 5 (May 17, 2016). Of course, we won’t know the full details of Yale’s plan, from Yale’s perspective, until it files a response, but reading the tea leaves, this is what I see thus far.
5. To reduce the risk of your wellness program being challenged, be proactive. Here are three things you can do right now to reduce your risk of being in the same boat as Yale University:
   1. Survey your employees. Use either a survey tool like Survey Monkey, or a focus group consisting of a representative sample of your employees. Be transparent about the motives for your program and ask for their input. Most importantly, ask them what incentive amount they view as crossing the line between voluntary and coercive.
   2. Educate your staff about the importance of compliance. Host a webinar or lunch-n-learn about wellness program compliance, especially the incentive laws. Invite all of your staff and stakeholders so that they all hear the message about the importance of creating a voluntary and inclusive wellness program.
   3. Conduct a wellness program compliance audit. My firm specializes in these audits, but at the very least, have an objective third party look at all aspects of your wellness program to identify compliance red flags. The audit should result in action items you can take to further reduce your risk of an enforcement action.

By being proactive and collecting documentation that shows you have taken steps to reduce your risk, even if you should end up facing a complaint, you now have evidence to show that you take workplace wellness compliance seriously. That will go a long way in convincing employees and enforcement authorities that you care about doing wellness right.

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