“Wellness” Programs: Do They Incentivize or Penalize?

That’s the implication of a California lawsuit involving CVS Pharmacy. Roberta Watterson’s lawsuit alleges that she voluntarily enrolled in CVS's group medical insurance plan in 2009. In 2012, the plan initiated a wellness program called WellRewards that required participants to complete an annual health screening and online wellness questionnaire. If Watterson elected not to participate in the program, she would be required to pay an additional medical insurance premium of $50 per month.

Watterson’s complaint specifically alleges: 

The questionnaire is lengthy and highly invasive. The 2013 and 2014 questionnaires consisted of hundreds of questions. The questionnaire includes invasive personal health questions, including questions about Plaintiff's mental health, sexual activities (such as whether she uses condoms with multiple sexual partners and whether she has been tested for chlamydia recently), and daily food intake. The survey also asks questions whose answers could potentially be self-incriminating, such as how often Plaintiff drives after drinking alcohol and how many miles per hour over or under the speed limit she drives. The survey also asks questions which have nothing to do with an employee's health, such as questions regarding salary and job type and how Plaintiff rates her job performance relative to other employees. (Watterson Decl., ¶¶ 17, 19; Setareh Decl., Exh. C.).

Viewing this as a job-related requirement that is compensable time, Watterson sued for unpaid wages for the time she spent completing the questionnarire. Her health screening took a total of about 4 hours, including a lengthy wait to be seen in which she was required to remain within earshot of the MinuteClinic so that she could hear her name called when it was her turn to be seen, plus about 12 miles of round-trip travel.

Her legal theory was that failure to comply with the survey would result in a $600 surcharge—and therefore, her employer was controlling her time by threatening to surcharge her insurance against her wages. Her lawsuit was dismissed last year. Last week, she filed an appeal to the Ninth Circuit, a court that often rules for employees.