Jul 16 2019
Employees forced to pick either privacy or penalties, AARP Foundation says
by Kenneth Terrell, AARP
As many as 5,400 workers at Yale University were forced to either share their private medical information with their employer or pay an expensive fine, according to a class action lawsuit AARP Foundation filed today on their behalf.
The lawsuit argues that by charging some employees $1,300 annually — $25 per week — if they do not to participate in the university’s workplace wellness program, Yale has violated both the Americans With Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The two laws bar employers from getting medical or genetic information from their workers unless that information is provided voluntarily.
“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,” said AARP Foundation President Lisa Marsh Ryerson, “and it hits low-income workers the hardest. Allowing employers to financially coerce workers into relinquishing their personal health information is a clear violation of medical privacy and civil rights protections.”
The risks that workplace wellness programs pose for older workers — who often face age discrimination because employers think their health care coverage will be costly — are a problem AARP has fought against for years. In August 2017, AARP successfully sued the Equal Employment Opportunity Commission (EEOC) to overturn federal wellness rules that allowed employers to penalize workers who do not to participate in the companies’ wellness programs.
“Under federal law, disclosing medical and genetic information and test results in workplace wellness programs must be voluntary,” said William Alvarado Rivera, senior vice president of Litigation at AARP Foundation. “Workers should have the freedom to choose whether to divulge personal health information in the workplace, as Congress intended.”
According to the lawsuit — which AARP Foundation filed in conjunction with the Connecticut civil rights firm Garrison, Levin-Epstein, Fitzgerald & Pirrotti — Yale’s program, called Health Expectations Program (HEP), requires certain union employees to submit to extensive medical testing. This include mammograms, colonoscopies and screenings for diabetes, for example, with the university’s health care providers gaining access to the results. Workers who prefer to keep their health information private or abstain from such tests are automatically charged $25 per week.
This arrangement forces employees to make uncomfortable and expensive decisions. For example, Christine Turecek, 57, works as a cook at Yale, which reported total net assets of $32 billion in 2018. Even though she previously had a double mastectomy (breast removal) during her fight with cancer, the HEP still expected her to have mammograms — tests that were no longer relevant — to avoid the penalty. Turecek, who is one of the lead plaintiffs, said she had to have multiple conversations with the wellness program about the mammograms, discussions she says were “too invasive” and emotionally draining because she repeatedly had to revisit her experience with cancer, according to the lawsuit.
Lisa Kwesell, who is 56 years old and another lead plaintiff in the lawsuit, works part time as a service assistant at the university. She participates in the wellness program because she can’t afford to have $25 per week taken out of her $408 weekly take-home pay, the lawsuit says. “[Yale] want[s] me to eat healthy. I couldn’t afford to buy good produce or good meat” if charged the $25 week fine, she says in the lawsuit. “Another $1,300 [per year] out of my paycheck would really hurt me.”
“The weekly fine is a high price to pay for privacy and protection from discrimination,” the lawsuit says.