Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Jul 18 2019
As it appeared on the New Haven Register
By Ben Lambert
NEW HAVEN — A group of Yale employees have sued the university, alleging weekly fines levied for not participating in a wellness program violate their civil rights.
According to the complaint, written on behalf of employees from the Unite Here union, Locals 34 and 35, by the New Haven-based law firm Garrison, Levin-Epstein, Fitzgerald & Pirrotti and lawyers from the AARP Foundation, the university requires employees in those unions to participate in its Health Expectation Program or pay $25 each week, adding up to $1,300 a year.
“Yale’s $1,300 fine… places Yale employees who are subject to the HEP in an untenable position: either divulge protected information (including prior insurance claims data) and submit to invasive medical examinations and testing, or forfeit a substantial portion of their salary to keep their personal medical and genetic information private,” the attorneys said in the complaint. ”Yale’s $1,300 fine not only slashes employees’ expected income; it violates their civil rights. The Americans with Disabilities Act… and the Genetic Information Nondiscrimination Act… prohibit employers from extracting medical or genetic information from employees unless that information is provided voluntarily.”
Karen Peart, director of external communications at Yale, said Wednesday that the university does not comment on pending litigation.
The Health Expectations Program requires the employees and their spouses to get a series of tests, vaccines and examinations, including “mammograms, colonoscopies, and blood testing,” and, the suit claims and for some with particular medical conditions or risk factors, to consult with a “health coach.”
If they do not complete the required tests or actions, the $25-per-week fine is levied, the suit claims.
Given the wages of some of the members of UNITE 34 and UNITE 35, the complaint argues that the financial penalty amounts to coercion by Yale — that the employees, given what they make, cannot afford not to participate in the program, according to the suit.
“The $25 per week fine imposes a significant burden on certain members of the Class; so much so that paying the $25 per week fine is not a viable option. These members of Local 34 and Local 35 are forced to disclose sensitive medical information and undergo invasive testing to avoid the weekly fine,” said attorneys on behalf of the Yale employees in the complaint.
The complaint also alleges that the university unlawfully shared medical information with Trestle Tree, a vendor that administrates the program, but is not covered by the Health Insurance Portability and Accountability Act.
The suit seeks injunctions to stop the $25 per week fine, stop the transfer of data to Trestle Tree without consent, and to purge medical and genetic information previously collected through the Health Expectation Program.
It also seeks damages, legal expenses, and other relief deemed just and proper by the court.
The AARP Foundation issued a press release announcing the lawsuit.
“This is a particularly important issue for older workers, who are more likely to have disabilities and medical conditions—such as diabetes, heart disease, and cancer — that are at risk of being revealed by wellness questionnaires and exams — and it hits low-income workers the hardest,” said AARP Foundation President Lisa Marsh Ryerson as part of that release, “Allowing employers to financially coerce workers into relinquishing their personal health information is a clear violation of medical privacy and civil rights protections.”