Could promotion of "wellness" be hazardous to your health? Sadly, the answer is yes -- if it leads to discrimination in employment. Corporate wellness industry advocates have turned up the heat on the Obama administration -- and on the independent EEOC -- to allow employers to force their workers to disclose sensitive personal information under the guise of "voluntary" wellness programs.
For years employers have offered worksite wellness programs, ranging from newsletters or gym memberships to high stakes incentive programs that change your insurance premiums by thousands of dollars if you lose weight, reduce your blood pressure or blood sugar levels, quit smoking or achieve some other health outcome. Although no scientific evidence has yet shown that such programs actually improve, health -- and a number of recent studies in fact suggest that high-stakes incentives merely shift, and do not reduce, health care costs -- the Affordable Care Act makes an exception to its basic ban on varying premiums based on health status for outcomes-based wellness programs.
Some employers ask workers to complete a Health Risk Assessment or HRA -- a questionnaire to gather information on their activities outside the office. Often accompanied by physical exams or blood tests, HRAs typically include questions about a wide range of personal matters, such as
- Are you (or do you plan to get) pregnant?
- Are you divorced?
- How much do you drink outside of work?
- Have you been depressed lately? and
- Have you ever been diagnosed with... (long list of health conditions)?
Not surprisingly, people don't always feel comfortable about answering such questions from their bosses. Participation has been low. So about half of large employers with HRAs offer employees an incentive to participate. Most times it's something small, like a gift card. But about a third of employers use a penalty or reward of $500 or more. And a few (3 percent) won't let workers have health insurance at all unless they complete the HRA.
That's where the trouble lies. First, there are the privacy concerns: many Americans believe, with good reason, that these matters are none of their employer's business. Beyond privacy, however, there's the question of how the boss plans to use this information. Once disclosed, sensitive health information too often has been used to discriminate against workers who have diabetes, heart disease, mental illness, and other conditions despite their ability to perform their job.
Fortunately, there are protections, for now. The Americans with Disabilities Act (ADA) actually prohibits employers from asking employees to disclose personal medical information--except when the information is directly job-related or when it is part of a voluntary wellness program. Since 2000, enforcement guidance issued by the Equal Employment Opportunity Commission (EEOC) has said "voluntary" means just what the dictionary says - that workers can't be required to participate in wellness programs or penalized if they don't.
To enforce these protections, last year the EEOC brought three actions against employers for allegedly coercing workers into completing an HRA: one in which an employee allegedly was fired for refusing the HRA; another in which an employee allegedly lost health benefits for refusing; and third in which employees who refused faced a series of financial penalties that could be as high as $4,000 per year for some workers.
No reasonable person would consider these arrangements "voluntary." But the enforcement actions have driven employers ballistic. They may even be trying to bully the administration into undermining the ADA's protections. It was employers who got exceptions from insurance discrimination rules for wellness programs into the Affordable Care Act; now they want wellness programs to have exceptions from ADA employment discrimination rules too. The Business Roundtable has urged the Secretaries of Labor, HHS, and Treasury to thwart the EEOC's enforcement efforts. They assert that if the ACA has an exception for those wellness programs, so should the ADA. And corporate leaders have appealed to the president to rein in the EEOC.
But there's a serious slip in the employers' argument. The ACA insurance discrimination exception applies only to outcomes-based wellness programs that meet certain standards. Most employers that use HRAs don't offer programs that meet those standards. And even when they do, neither the ACA nor its wellness regulation amended the ADA's fundamental protection against workplace discrimination -- that is, the broad prohibition on asking medical questions that aren't voluntary.
The wellness industry and major employers are demanding that the ADA exception for "voluntary" wellness programs be re-defined to give them free rein. A wellness industry blog takes credit for the EEOC's announcement that it is re-considering what voluntary might mean. And press accounts suggest that employers are threatening to support the repeal of Obamacare -- or its gutting in the pending King v. Burwell suit -- unless the EEOC backs off enforcement of current rules. Meanwhile, a bill to weaken ADA's protections has just been introduced in Congress.
The concept of wellness, surely, is something we all can applaud. People should have every opportunity -- at home and at work -- to choose to eat better, exercise more, and reduce stress. Wellness programs that actually help people improve their health are a good thing. But privacy and protecting workers from job-based discrimination are good things too. Corporations and politicians should take care not to invoke 'wellness' in ways that weaken important civil rights protections and give employers license to snoop around in our medical records and our private lives. That would most definitely be bad for our health.