A group of workers who accused their employer of using financial penalties to force participation in a workplace wellness program have come to terms with a financial settlement and modifications to that program.
The suit was filed in July 2019 in the U.S. District Court for the District of Connecticut on behalf of the plaintiffs (Lisa Kwesell, Christine Turecek and Jason Schwartz) and all current and former employees of Yale who are or were required to participate in the HEP or pay a fine of $25 per week between Jan. 1, 2017 and present. The plaintiffs had argued that Yale’s HEP violated the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) because the Program was not “voluntary.[i]”
Ultimately, the plaintiffs—backed by the AARP Foundation—alleged that Yale’s Program was not “voluntary” because employees either had to participate and undergo medical exams, and, in some circumstances, medical inquiries, or pay $25 per week for optingout of the Program—and because Yale released the Plaintiffs’ spouses’ insurance claims data to a wellness vendor without Plaintiffs’ or their spouses’ authorization.
The Settlement
The $1.29 million settlement (Lisa Kwesell et al. v. Yale University, case number 3:19-cv-10980, in the U.S. District Court for the District of Connecticut) has a relatively complex method of allocating the cash, depending on how the participants/members of the class were impacted. Class Member who paid fees[ii] will receive a percentage of the amount deducted from their pay for those fees. The settlement explains that, “if the Court does not approve those awards in full, such funds will simply increase the amount to be disbursed among Class Members who paid opt-out fees in proportion to the share of opt-out fees each individual paid.”
Class Members who attended health coaching will receive $225 under the terms of the agreement, and Class Members whose spouses attended health coaching will receive $50. Moreover, each Class Member who did not attend health coaching but was deemed compliant with the HEP will receive $50. It’s noted that the recovery contemplated in the settlement is “additive in nature such that Class Members who fall into multiple categories will receive the cumulative value of all payments” (except that individuals who receive $225 for their participation in health coaching will not also receive $50 for being deemed compliant with the HEP).
As for the “injunctive program relief,” the settlement agreement states that Yale will stop the collection of HEP fees during the duration of the proposed Settlement, and that it will also direct Healthmine (one of its business associates), not to send data to TrestleTree for the purpose of health coaching referrals. Moreover, under the terms, Yale will direct TrestleTree to purge all data relating to completed prior health coaching engagements from its records. For those individuals who are actively engaged in health coaching currently, TrestleTree will notify individuals in advance and give them the option to have their records retained (or purged) and continue coaching (or not) as they desire, with no penalty for refusal.
Attorneys’ Fees & Costs
The settlement also seeks “service awards” to the named plaintiffs in the range of $5,000-10,000 (“depending on the extent of their engagement in the action”) as well as service awards of $1,000 for other individuals whose names and stories were shared in the Amended Complaint. Oh—and yes, there will be attorneys’ fees and costs—however, “not to exceed $200,000,” which the agreement notes is approximately 15.5% of the settlement fund, as well as costs “not to exceed $10,000.” Those fees, it explains “are significantly less that Plaintiffs’ Counsel’s lodestar” (a computation based on hourly rates and time expended on the case).
The parties note that the settlement provides “substantial monetary benefits to all class members (without the need to submit any claim form) as well as significant programmatic relief, including cessation of the collection of HEP (Health Expectations Program) fees for four years, or until there is a change in law, as well as modifications to Yale’s data-sharing practices.” More specifically, it notes that Yale’s business associate Healthmine “will no longer send data to Yale’s HEP vendor, TrestleTree, for purposes of health coaching, without express consent and Yale will instruct TrestleTree to purge data related to prior health coaching engagements from its records.”
Now we’ll see if the court approves.
[i] The ADA and GINA generally prohibit employers from imposing medical examinations or inquiries or acquiring employees’ genetic information unless those exams, inquiries, and genetic information acquisition are either job-related or part of a “voluntary” wellness program.
[ii] The agreement notes that this is currently estimated to be 50% of the total amount paid in fees, but will ultimately depend on the final data regarding Class Member participation in the HEP provided by Healthmine, the number of Participating Class Members (those who do not opt out) and the amounts awarded for attorneys’ fees and costs.
