Judge sides with Honeywell in wellness dispute with EEOC

Honeywell International Inc. on Monday defeated the Equal Employment Opportunity Commission's bid for a court order preventing it from penalizing workers who don't participate in a corporate wellness program.

The commission challenged the new rules last week after receiving complaints from two of the company's Minnesota employees. But after hearing arguments, U.S. District Judge Ann Montgomery in Minneapolis said surcharges can remain in place while she considers the full case.

Montgomery was asked to decide whether the wellness program, which Honeywell said was enacted in furtherance of the Affordable Care Act, conflicts with other federal laws. The judge said she wasn't ready to make even a preliminary determination on that conflict, and she allowed the company's practices to continue.

Honeywell, a diversified manufacturer based in Morristown, N.J., that has significant operations in the Twin Cities, is one of many U.S. businesses that use such incentives to encourage employees to submit to medical examinations and receive advice on fitness, nutrition and other behaviors.

While 80 percent of workers support wellness programs that promote healthy behaviors, according a June survey by the Menlo Park, Calif.-based Kaiser Family Foundation, 62 percent don't approve of requiring nonparticipants to pay more for their health insurance.

In September, Kaiser said 51 percent of businesses with more than 200 employees offer some sort of biometric screening and 8 percent of those come with an incentive to participate or a penalty for opting out.

In Honeywell's program, workers and their spouses are asked to undergo a biometric screening that includes drawing blood to test cholesterol levels and a determination of body mass index by measurement of height, weight and circumference.

"Honeywell's medical examinations are unlawful," the agency said in court papers, contending they violate the federal Americans With Disabilities Act, which bars employers from compelling medical examinations that aren't job related.

The biometric screening may also breach a federal law prohibiting discrimination based on genetic information, according to the EEOC.

"We are not seeking to stop testing and not seeking to stop the assessment of the smoking surcharge," Laurie Vasicheck, an EEOC attorney, told the judge Monday. "What they can't do is penalize employees who do not want to go through it."

She said the testing would be acceptable if it was voluntary, but the size of the fine meant that it wasn't.

Honeywell, a self-insurer, called the complaint "frivolous" in a statement issued Oct. 28. The company said the EEOC is "woefully out of step with the health care marketplace and with the core intent" of the federal government's health care reform.

There's no requirement that employees participate in the biometric screening program, and those who opt out face no risk of dismissal for doing so, Michael Burkhardt, a Honeywell attorney, told Montgomery.

About 30,000 of the company's employees, including two Minnesotan complainants cited by the EEOC — 55 percent of the company's workforce — have already been screened, he said. The final day to do so is Nov. 14.

Last year, when there was no penalty, 77 percent of its workers participated, Burkhardt said.

The judge said she believed the company was better positioned to refund money improperly collected if she ultimately rules against it than to assess penalties after being blocked from doing so if she decides the policy is OK.