On February 24, 2023, Leanne Diment, on behalf of a proposed class of employees of Quad Graphics and Rise Interactive Media & Analytics, sued her employer for violating the Americans with Disabilities Act (ADA). Specifically, she alleges that her employer forced her to undergo a biometric screen with her physician to avoid having to pay over $1800 more each year in health insurance premium. See Complaint, dkt. #1, Diment v. Quad Graphics, Inc. Case No. 23-cv-1173 (N.D. Ill. 2023).
Of course, this is not the first lawsuit against an employee wellness programs. Our firm has covered all the previously known employee wellness lawsuits in our blogs. This is just the latest lawsuit to challenge an employer’s wellness program. But, what makes this lawsuit unique from the others is that it challenges an employer who has a whole division dedicated to employee wellness (QuadMed) that has been at the forefront of employee wellness for decades. It is also unique because the employee is challenging a biometric screening program that is conducted by the employee’s physician, not a wellness vendor hired by the employer. In our previous blogs on employee wellness programs, we have raised awareness that the primary driver of employee complaints about wellness programs concerns invasion of privacy. We have noted that one way to minimize employee concerns about privacy is to ask employees to visit their doctor for wellness screenings as opposed to subjecting them to screenings at the worksite performed by some unknown personnel. Theoretically, employees should trust their primary care provider more than a stranger drawing blood for an employee wellness program.
Apparently, that assumption is being tested by this most recent lawsuit. The plaintiff in the Quad Graphics case felt her privacy at risk even when asked to take a two-page health screening form to her medical provider to fill out. The health screening form asked her medical provider to measure her body mass index, blood pressure, total cholesterol, HDL cholesterol, triglycerides, triglycerides divided by HDL, LDL cholesterol, and hemoglobin A1C. The form also asked the provider to perform a Serum Cotinine Screening test. Failure to participate in the screening by her doctor resulted in the plaintiff having to pay about $1800/year more in health insurance premiums.
Interestingly, the complaint alleges that the plaintiff asked her employer for a “waiver” from the health screening activity. The complaint states that the employer refused to issue a waiver until the plaintiff actually participated in the screening program. Once the plaintiff participated and submitted her completed health screening forms, she could avoid the higher insurance premiums by likely finding an alternative to meeting the health screening metric requirements (yes, it sounds like the wellness program was an “outcomes-based” program under the Affordable Care Act rules). Although Quad Graphics was technically in compliance with the ACA wellness incentive rules by refusing a waiver of the biometric screen, such refusal did make the biometric screen appear less “voluntary,” a key requirement for complying with the ADA wellness incentive rules.
We have proposed in the past that giving employees alternatives to taking a biometric screen in order to avoid financial penalties (such as higher health insurance premiums) could help employees perceive that the biometric screen or health risk assessment was more voluntary. In this case, the Quad Graphics employee asked for a waiver from the biometric screen as the alternative to participating in the screening activity. Yet, the employer refused. In her complaint, the employee mentions that “an annual penalty of over $1,800 is a high price to pay for privacy and protection from an employer requiring an employee undergo an intrusive examination and testing.” So, even though the employer asked employees to see their physician for the biometric screen, that was not a sufficient buffer to lessen this employee’s concerns about privacy.
The only legal violation alleged in the complaint is a violation of the ADA’s voluntary wellness program requirement. The plaintiff employee is seeking class action status so that she may sue on behalf of all employees affected by the employer’s wellness program. This lawsuit is in the very early stages, so we may not know the outcome for a while. But, it is another example of employees challenging corporate wellness programs that collect employee health data through health risk assessments or biometric screens.
If you operate a workplace wellness program and would like a legal assessment of your program, contact our law firm. We specialize in corporate wellness compliance.