November 14, 2014
EEOC General Counsel David Lopez received a strong rebuke from Republican Senators at his re-nomination hearing this week for actions he has taken against employer wellness programs as did the Commission for failing to issue guidance on the legal issues involved. Of particular concern to Republican Senators was the EEOC's recent lawsuit against Honeywell International for its wellness program. "The problem is that the Affordable Care Act encouraged wellness programs, and you're suing companies that are attempting to provide wellness programs before the Commission has given guidance about what companies may do," said Sen. Lamar Alexander (R-TN), the incoming Chair of the Committee. Mr. Lopez explained that in contrast to the two other cases the EEOC has filed against employer wellness cases this year, in the Honeywell case, "We were not seeking damages. We were not seeking to stop the testing. All we were looking for was a little breathing space to conduct an investigation . . . to know that the medical information, which included the submission of blood samples, was turned over voluntarily." This claim may not be much comfort to employers, given that the EEOC is still investigating the complaint against Honeywell, despite the fact that the court denied the agency's request for a temporary restraining order. EEOC Commissioner Nominee Charlotte Burrows, who was also before the Committee, was asked by Sen. Orrin Hatch (R-UT) whether guidance on wellness programs would be appropriate, and she responded: "It's clear this is an area where guidance is necessary." She noted the importance of getting input from employers and other stakeholders on the issue to find "the right balance." Prior to the hearing, HR Policy sent a strong letter to the Committee, expressing concerns that the EEOC litigation "will only have a chilling effect on wellness programs and jeopardize the incentives for all employees who have benefited from them." Meanwhile, Mr. Lopez's actions in other cases, in which he proceeded with litigation against employers even though there had been no complaints by individuals of discrimination, drew an animated reprimand from Sen. Rand Paul (R-KY): "I don’t understand how you wouldn’t resign immediately, and say this is abhorrent, this is so against everything America stands for, that you would go after people where there has been absolutely no complaint, run them through the ringer, and use the threat of the bully nature of your office to punish business and as a consequence punish their workers? . . . Why don't you fix your backlog before going off looking for problems that don't exist?"