New Haven Register (New Haven, CT)
Checks go out to Yale workers in class-action settlement involving wellness program
NEW HAVEN — Checks for up to $1,300 have gone out to more than 6,000 union workers at Yale University as a result of a class-action lawsuit settlement of a case involving a workplace wellness program that employees alleged required what amounted to involuntary participation unless they were willing to pay “opt-out” fees.
The Health Expectations Program, or HEP, which was negotiated into the contracts of Yale’s Unite Here Local 34 and Local 35 unions, required workers and spouses to submit to medical testing such as mammograms, colonoscopies and diabetes screenings, with Yale wellness vendors gaining access to results, the suit alleged.
Workers who wanted to keep their information private or who did not want to submit to tests were charged an “optout” fee of $25 per week — up to $1,300 per year, said Lisa Kwesell of East Haven, who was among the named plaintiffs.
AARP joined with individual members of the Yale unions in the suit. AARP previously had litigated issues involving similar programs elsewhere.
“It was part of the new contract and the union and the university starting sending out notifications that they were going to implement the wellness program and we had certain notifications that we should apply for it,” said Kwesell, who has worked at Yale since 2005, currently as service assistant at Benjamin Franklin College.
Kwesell waited until near the deadline date to sign up, then, on a weekend, went online to read the terms and conditions,”and I said ‘Oh, my God!’ ”She got the ball rolling on the litigation, for which a proposed settlement was reached last March, because “I really disagree with this. I don’t think my employer has a right to know my medical condition” and “I don’t think that they have the right to fine us for our (lack of ) compliance.”
Kwesell did research and found that AARP had done and won litigation for similar issues, so “I reached out to the attorneys that had done and won it.”Before filing suit, she said she went back to the unions and Yale and said she had a problem with it. “They said there was nothing they could do. It was in the contract.”
Then, “when I explained the magnitude of it and that it wasn’t just me; it was every single employee in Local 34 and 35, they wanted to meet with other employees and not just me,” she said.
Employees had different reasons for not wanting to participate. One of the other plaintiffs got involved because “they were badgering her to get a mammogram and she had had a double mastectomy,” Kwesell said.
That employee did not return a call for comment.
Kwesell had a number of problems with the the program, including that it “was very cookie-cutter.”
Among other things, she had she had to provide a letter from her outof-network doctor “and a copy of my cancelled check to prove to them that I had complied.” The wellness program also wouldn’t accept an athome colon cancer screening test in lieu of a colonoscopy, even though her doctor said it would be OK, she said.
People’s health “should be between you and your doctor,” Kwesell said. “The health information shouldn’t be datamined.”
She said she wants her fellow employees to know “that the checks are real. They should definitely go and deposit them” as soon as possible.
“If people were a part of this wellness program and they didn’t receive a check, they should get a hold of the claims administrator” by calling 866742-4955 or emailing info@rg2claims.com.
Another of the named plaintiffs, Jason Schwartz, said the main point of contention was defining the term “voluntary.”
Yale said it was, “but it wasn’t voluntary” because there were financial costs if someone didn’t comply,” he said.
“There was a big problem with it for me because, for one, I’m a grown adult . ... I didn’t need anyone dictating to me what I do and what I don’t have to do,” Schwartz said. “Plus, if you didn’t comply, they docked you.
“I just felt it was wrong and a lot of people were complaining about it,” he said.
“A lot of people were unhappy with it and a lot of people were afraid to speak out,” he said. “Once they started to dock my paycheck, I said, ‘Let’s go forward with this.’ ”
He said he was happy with the settlement.
“We got everything that we were looking for,” he said. “Most people were happy with the settlement . ... Hopefully, they’ll think twice before they institute something like it . ... I’m for personal liberty and this was just an overreach.”
One of the plaintiffs’ attorneys, Joshua Goodbaum of Garrison, Levinson-Epstein, Fitzgerald & Pirrotti, said of the settlement, “I’m grateful for the courage of the employees who came forward and told their stories and I’m pleased with the significant compensation that we were able to secure for our clients.”
Adam Marchand, a chief steward for Local 34 — and city alder — who works on health policy for the union, said, “The union was not a party to the lawsuit . ... We had zero involvement in the lawsuit. When our members ask us about it, we simply refer them to the AARP attorneys.”
Asked for comment on the payout, Yale spokesperson Karen Peart emailed a statement.
“Yale University and certain of its employees have agreed to settle a class action lawsuit, Kwesell v. Yale University, subject to Court approval,” the statement said. “The lawsuit alleges that Yale’s Health Expectations Program violated federal statutes because it required employees and their spouses to either participate in the wellness program, which requires routine checkups and diagnostic testing, or pay a weekly opt-out fee.
“Under federal law, voluntary employer wellness programs are permissible,” but “the Plaintiffs alleged that the $25 opt-out fee rendered the program involuntary under the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act,” it said.
“We designed the Health Expectations Program with our union partners and the advice of healthcare and legal experts,” said Stephanie Spangler, Yale’s vice provost for health affairs and academic integrity. “Nevertheless, we feel it is best to resolve what would have been expensive litigation and move forward. Our relationship with our employees is an important priority.”
Under the settlement agreement, Yale will continue to offer the Health Expectations Program, but will not charge optout fees for a four-year period and will change its practices regarding the transfer of health data in connection with the program, the statement said.
Yale also agreed to pay $1.29 million, distributed among employees who were covered by the program and to cover plaintiffs’ attorneys’ fees and costs to the extent approved by the court.