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AARP Foundation Files Charge Against Workplace Wellness Program in Illinois

Construction workers faced health insurance penalties of up to $2,400 per year

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Many workers at the construction company Austin Industrial face a difficult decision, according to a new charge AARP Foundation Litigation (AFL) has filed with the Equal Employment Opportunity Commission (EEOC) against Austin and its parent company, Austin Industries. If the employees choose to participate in the company’s workplace wellness program, they could end up revealing sensitive information about their health. But if they decide not to join, they must pay as much as $2,400 in penalties each year.

According to the EEOC charge, this wellness program violates Austin Industrial’s 800 employees’ protection from discrimination based on disabilities or genetic information — and may also violate those protections for Austin Industries’ 6,000 employees nationwide. The two federal laws that protect workers from these types of discrimination are the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

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“AARP Foundation has long fought on behalf of workers who want to keep their medical and genetic information private,” says Senior Vice President for Litigation William Alvarado Rivera. “Federal law prohibits an employer from collecting medical and genetic information from an employee unless the employee provides the information voluntarily. When an employer’s wellness program significantly penalizes an employee for non-participation, that’s not ‘voluntary’ — that’s a clear violation of the law.”

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Austin’s wellness program requires employees and their spouses to submit to biometric screenings and meet specified wellness standards, including achieving certain weight requirements. Employees and spouses who do not participate in the program or meet its requirements must pay hefty insurance premium surcharges of $1,200 to $2,400 per year. 

For workers like Shawn Jones, whom AFL is representing, the surcharges area a big bite out of their annual income. In the fall of 2021, Jones started working at an Austin subsidiary in Decatur, Illinois. He and his spouse must complete the wellness program’s biometric tests by September 2022 or they will have to begin paying the surcharges. The surcharges amount to several months’ worth of utility payments or grocery bills for Shawn and workers like him, a financial hit that is difficult to weather, particularly in a time of high inflation.

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AFL has successfully helped workers fight back against these types of workplace wellness policies, which penalize workers who do not wish to provide sensitive health data to their employer. In March 2022, AFL achieved a $1.29 million settlement for 5,400 workers at Yale University who filed suit against that institution’s wellness program. In 2016, AFL prevailed in a lawsuit against the EEOC, arguing that regulations allowing employers to impose penalties of up to 30 percent of monthly insurance premiums in their wellness programs resulted in penalties so high that they rendered such programs “involuntary.” The EEOC has not issued subsequent regulations, and some employers have continued to impose penalties and surcharges for non-participation in wellness programs.

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