Corporate “wellness” programs are unhealthy for employee rights 1

Corporate “wellness” programs are unhealthy for employee rights

By Nicole Heeder

The Affordable Care Act has everyone up in arms.  From its chaotic rollout to the Supreme Court’s fast approaching opinion in the Hobby Lobby birth control coverage case, “Obamacare” has been writhing with controversy.

So why isn’t anyone talking about the dangers  posed to employee privacy by Obamacare’s “health contingent wellness plans”?  Although on the surface these plans have an admirable purpose, we need to look deeper. Here’s how these wellness plans work:   An employer may offer its employees financial incentives to quit smoking, lose weight or make other healthy changes to their lifestyle, encouraging healthy behavior. So far so good?

While this sounds good in theory, the devil is in the data, specifically the data that employers are collecting to measure their employees’ health status. Health contingent wellness plans require employees to undergo invasive biometric health screenings on an annual basis.  Employees are weighed, poked and prodded to find out their weight, height, body mass index, blood pressure, and cholesterol levels. Biometric results are then used to identify individuals who are at risk for disease, most commonly heart disease and diabetes. Once the data is collected, the employer then offers employees incentives to change their lifestyle all in the name of lowering employer healthcare costs.

These incentives may come in the form of decreased premiums, cash or other gifts.  But the incentive programs are not all they’ve cracked up to be — employees who do not meet expectations may be subjected to surcharges if they fail to stop smoking, take a fitness course or work with a health coach, not to mention the follow-up testing.

There is also the real risk that employers will view employees who do not meet company set standards as a burden on their workforce.  An employer who believes that perceived medical conditions or disabilities interfere with the employee’s ability to perform may be tempted to discriminate against or terminate employees who fail to meet health goals.

With this in mind, some protection against employer discrimination is built in to the ACA — access to the biometric results is limited to the third party vendors who conduct the testing. However, practically speaking, this structure is far from fool-proof. Should an employer suspect that an employee has a disability or medical condition, something as simple as reviewing the insurance premium changes may provide confirmation. Worse yet, these screenings often take place at the worksite further threatening employee privacy and easing employer access.

Another form of protection is the “reasonable alternative standard” for employees whose medical condition prevents them from attaining the health results required to qualify for incentives. But since an effective alternative needs to be tailored to the individual’s specific medical condition, the employee is forced to self-identify the disability in order to qualify for lower premiums.  Compelled disclosure of a medical condition or disability to an employer violates the California Fair Employment and Housing Act.

The Fair Employment and Housing Act and other California laws prohibit disability discrimination and prevent an employer from discriminating against an employee for lawful off-duty conduct.  Employee choices about what to eat, whether to exercise, or whether to smoke cannot be policed by employers.  Health contingent wellness plans undermine these protections.

While encouragement of a healthy workforce is commendable, “health contingent wellness plans” present risks that must be addressed  to ensure that they do not become a smokescreen for discrimination based on health status.

Nicole Heeder

About Nicole Heeder

Nicole Heeder owns and operates Law & [M]ocean, a plaintiffs’ employment law boutique in San Diego. She is focused on eradicating discrimination and harassment issues in the workplace.

It’s none of their business, or is it? 3

It's none of their business, or is it?

By Daniel Velton

About 100 years ago, Ford Motor Company had a “sociological department” of investigators who monitored Ford workers’ off-duty conduct to ensure those employees didn’t drink too much, kept their homes clean and “properly” spent their leisure time.

About two weeks ago, an employer in San Francisco announced a new policy prohibiting the use of all tobacco products on its property by employees, even while on break and even while in their personal cars. With the new rule comes the introduction of a team of “tobacco-free ambassadors” to advise workers of the prohibition. It’s not the first employer to implement a tobacco-free policy, and probably not the last.

The new policy, like the old one at the turn of the last century, is apt to reignite a debate over workers’ right to privacy and the freedom to do what they want in their free time. Unquestionably, the goal of tobacco free-policies in the workplace is noble. Thousands die of smoking-related illnesses every year, cigarette butts litter smoking areas, and most find that smoke just plain smells bad. Even more important, the workplace at issue here is effectively a hospital environment with numerous medical patients. In announcing its new policy, the hospital itself acknowledges that nicotine forms an addiction as bitterly painful as any to break. (To its substantial credit, UCSF will provide free nicotine replacement gum to help with cravings).

Employer regulation of off-duty conduct has led to numerous laws across the country. In California, for example, Labor Code section 98.6 prohibits terminating or in any way discriminating against an employee because he or she engaged in “lawful conduct occurring during nonworking hours away from the employer’s premises.” Whether smoking in one’s car during a lunch break qualifies as protected off-duty conduct remains to be seen. Either way, those taking part in the inevitable debate over this issue should be mindful of the important interests on both sides. Successfully striking a balance between employee freedoms and patient/coworker rights to a smoke-free environment is going to be as difficult as going cold turkey ever was.

Daniel Velton

About Daniel Velton

Daniel Velton began his career with the largest labor and employment law firm in the world. Using that experience, he brings valuable knowledge and perspective to his current practice, in which he exclusively represents employees in individual and class action discrimination, wrongful termination, harassment, wage and hour, and other employment cases.

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