Court rejects coercive, biased rule favoring intrusive workplace wellness plans

aarpAmerican workers have gotten back a little breathing room from corporations’ intrusive push to try to get them to surrender more of their personal, private health information as part of workplace wellness programs linked to company-provided health insurance plans.

This is due to a federal judge’s rejecting a rule by the federal Equal Employment Opportunity Commission that allows companies to describe the wellness programs as “voluntary,” even though workers may pay thousands of dollars if they decline to participate in them.

Such “coercive” company conduct is discriminatory, runs roughshod over workers’ health privacy rights, and is unfair, the AARP had asserted when it sued the EEOC to overturn its workplace wellness rule.

That regulation, alas, already took effect, and U.S. District Judge John D. Bates said it would cause too much confusion and too many problems to not only reverse it, as he did, but also to vacate it. Such a move would, for example, penalize workers and companies that had complied with the EEOC rule in good faith.

Instead, he ordered the agency to repair the rule, explaining why it believes, wrongly, he said, that companies arbitrarily can create incentives tied to wellness program participation and amounting to as much as 30 percent of workers’ annual health insurance premiums. Those incentives, on average can amount to more than $6,400 annually per employee, meaning workers who decline to go along with “voluntary” wellness programs could lose as much as $2,000 a year.

Why would they do so? Because the wellness programs—which independent, nonpartisan, evidence-based researchers have assailed as ineffective and do little or nothing to reduce health care costs—have burgeoned into a $6 billion a year industry, and, increasingly have expanded their demands for workers confidential health data.

They no longer just encourage workers to exercise more or to stop smoking, for example by agreeing to sign up for text messages or by visiting monitored web sites to record results. Instead, some employ biometrics, collecting increasingly detailed health information and matching it against known profiles of individuals with chronic or developing conditions. Some collect blood and other samples. Some demand private medical or genetic information.

This sort of highly personal and private health data already is protected by federal laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA). But Judge Bates found the EEOC misread these laws, and with little proffered evidence or explanation, decided that workplace wellness programs remained “voluntary” and not discriminatory, even when imposing potentially painful fiscal incentives at the 30 percent level to ensure program participation.

In my practice, I see not only the harms that only patients suffer while seeking medical services but also the considerable, invasive hurdles that companies put up for them to get, keep, and use workplace-provided health insurance coverage.

It’s great for progressive employers to offer workers thoughtful, sincere initiatives like gym discounts, weight-control and anti-smoking programs, and workplace vaccinations. But it is unacceptable to see the creeping and creepy Big Brother “voluntary wellness” moves into demoralizing prying, for example, into whether employees have or have survived cancer, or if their marriages are sound, or if they have family histories of drug or alcohol abuse or sex-related issues.

Companies have a right and duty to not just do well by their shareholders but also the folks who work for them every day to make great their goods and services. But what would happen if Corporate America rethought wellness programs and put the billions of dollars each year they fritter away on them into reducing high deductibles and making their company-provided health insurance more affordable and accessible?

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