Jun
19
2014
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.
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.
