Workers Say Yale’s Wellness Policy Violates Bias Laws

Mar 2 2020

As it appeared on Law360

By Kevin Stawicki

Law360 (March 2, 2020, 6:43 PM EST) — Yale University’s policy to slap $1,300 fines on workers who refuse to hand over medical and genetic information violates federal disability and genetic information laws, those workers told a Connecticut federal judge Monday in an attempt to score an early win in their suit.

A group of unionized Yale workers urged the judge to partially grant summary judgment on claims that the elite university’s “health expectations program” violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

By forcing roughly 5,000 union members to choose between forking over personal information and losing $25 weekly from their paycheck for opting out, Yale contravened requirements under the two laws that such disclosures in work settings be voluntary, the workers said.

“The civil rights laws’ ‘voluntary’ exception to the general prohibition on employers’ medical intrusions into employees’ lives does not permit financial penalties for noncompliance with a wellness program,” the workers said.

“An act is only truly ‘voluntary’ when it is free from coercion, divorced from financial considerations, and characterized by true freedom of choice,” the workers continued.

While the ADA doesn’t give a clear definition for “medical examinations” in the workplace — which cannot be demanded under the law — the workers said the U.S. Equal Employment Opportunity Commission’s enforcement guidance clarifies that any procedure that seeks information about one’s health constitutes a medical examination.

Karen Peart, a spokesperson for Yale, said in an emailed statement that the university’s wellness program was negotiated with the workers’ union and “aims to improve the health of union members and their families.”

“Yale is confident that the program complies with federal law,” Peart said.

The plaintiffs are three unionized Yale employees — Christine Turecek, a cook; Jason Schwartz, a locksmith; and Lisa Kwesell, a part-time service assistant. The lawsuit notes Kwesell makes about $25,600 per year, meaning the $1,300 fine would constitute a 5% pay cut.

The workers are represented by Garrison Levin-Epstein Fitzgerald & Pirrotti PC and the AARP Foundation, whose sibling organization, AARP, has challenged the idea of nonvoluntary wellness programs in court before.

A lawsuit AARP filed in October 2016 succeeded in invalidating EEOC regulations that let companies fine workers for keeping health information private.

“This is kind of a follow-up to that litigation,” Dara Smith, an AARP Foundation senior attorney, told Law360 in July. “It’s a suit to enforce what the law is now after the 2016 regulations were struck down.”

Counsel for the workers declined to comment.

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 Emily Brill. Editing by Jack Karp.

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