Workers Sue Yale Over Wellness Program’s Fines

Jul 16 2019

As it appeared on Law360

By Emily Brill

Law360 (July 16, 2019, 8:57 PM EDT) — A trio of Yale University workers sued the school in Connecticut federal court Tuesday over its employee wellness program’s $1,300 per year fine for nonparticipants, saying the penalty places the program in violation of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

The ADA and GINA require disclosure of medical and genetic information in work settings to be voluntary, the workers said, and Yale’s practice of forcing roughly 5,000 union members and their spouses to submit this data or pay a $1,300 fine violates these laws.

“Yale’s $1,300 fine, which Yale deducts directly from employees’ paychecks in $25 weekly increments, places Yale employees who are subject to the [Health Expectations Program] 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 workers wrote in their lawsuit, which they hope to turn into a class action.

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 Equal Employment Opportunity Commission regulations that let companies fine workers for keeping health information private.

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

The AARP Foundation’s president, Lisa Marsh Ryerson, said it’s important for workers to be able to keep their health information private, to protect themselves from workplace discrimination.

“Allowing employers to financially coerce workers into relinquishing their personal health information is a clear violation of medical privacy and civil rights protections,” Ryerson said in a statement Tuesday.

A Yale University spokesperson was not immediately available for comment after regular business hours Tuesday.

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.

Counsel for Yale University could not immediately be determined Tuesday.

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.

–Editing by John Campbell.

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