Workers Insist Yale’s Wellness Program Not Really ‘Voluntary’

Jun 8 2020

As it appeared in Law360

By Danielle Nichole Smith

Law360 (June 8, 2020, 5:05 PM EDT) — Yale University workers urged a Connecticut federal judge to let them move forward with a disability and genetic information bias suit accusing the university of using penalties to coerce them into a wellness program, arguing the program wasn’t truly optional.

In their motion Friday, the unionized workers opposed Yale’s bid to dismiss their suit alleging the school’s health expectations program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, which require that medical and genetic disclosures in work settings be voluntary, by fining those who chose not to participate.

“Yale’s definition of ‘voluntary’ — any act that a person ‘chooses,’ whether or not under compulsion — effectively reads the term out of the statute,” the workers said. “It would permit employers to impose virtually any punishment on employees, who must then ‘choose’ whether to abandon the civil rights granted them by Congress.”

The program, according to their July suit, requires the union members and their spouses to “adhere to a strict schedule of examinations, testing and vaccination.”

Including the wellness program in their collective bargaining agreement didn’t make it voluntary under the ADA and GINA, the workers said. And the appropriate framework for the meaning of “voluntary” was under employment law, which supported the workers’ definition, not the criminal and contract law the university pointed to, according to the motion.

The workers further argued that Yale wrongly contended that their definition of “voluntary” had to be rejected because it clashed with the Affordable Care Act. The ACA and the civil rights laws at issue in the case governed different entities, and it was “entirely ordinary” to have overlapping laws, the workers said.

In their motion, the workers also asked the court to grant them summary judgment on their GINA claims, saying Yale’s assertion that the program satisfied GINA because the school complied with the Health Insurance Portability and Accountability Act didn’t hold water.

“In short, neither the GINA provisions Yale relies on nor the university’s protests that it complies with health care privacy laws can save the university from liability for its involuntary acquisition of employees’ genetic information through the claims-data-collection process,” the workers said.

The plaintiffs are three unionized Yale employees — Christine Turecek, a cook; Jason Schwartz, a locksmith; and Lisa Kwesell, a part-time service assistant.

If someone chose not to participate in the wellness program, the university would dock their paychecks $25 a week, or $1,300 a year, the suit said.

Yale argued in its motion to dismiss that the program was voluntary, telling the court that the workers’ definition of the term was an “extreme and unreasonable interpretation” that hadn’t been accepted by any courts. The school said, among other things, that the agreement reached with the union that allowed the workers to have “virtually free healthcare” was the “epitome of voluntariness.”

Counsel for the parties didn’t respond to requests for comment Monday.

The workers are represented by Joshua R. Goodbaum, Joseph D. Garrison and Elisabeth J. Lee of Garrison Levin-Epstein Fitzgerald & Pirrotti PC and Dara S. Smith, Elizabeth Aniskevich and Daniel B. Kohrman of AARP Foundation Litigation.

Yale University is represented by Jonathan M. Freiman, Kim E. Rinehart and Richard Luedeman of Wiggin and Dana LLP.

The case is Lisa Kwesell et al. v. Yale University, case number 3:19-cv-10980, in the U.S. District Court for the District of Connecticut.

–Additional reporting by Kevin Stawicki. Editing by Steven Edelstone.

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