Wellness Programs and the Unwell

Rodney Warner, JD
Rodney Warner, JD

The future of employer provided health care insurance will be driven, in part, by wellness programs. These are efforts by employers to make employees healthier, in an attempt to try to reduce usage of the insurance and decrease costs (premiums for employer provided health care insurance increased an estimated 97% from 2002 to 2012).  That’s a laudable goal, but at what cost to disabled employees?

Like most things, the future will be good for some and bad for others.  It could be bad for those undergoing cancer treatment and some survivors (as if they don’t have enough to worry about).

CVS, the store where so many of us purchase our meds, has started a program where it’s not enough for employees to give their name, address, social security and telephone numbers.  According to the business magazine, Fast Company,

Drugstore chain CVS recently told its 200,000 employees to reveal their weight, height, body fat and blood pressure information, as part of a “health screening and wellness review, so that colleagues know their key health metrics [and can] take action to improve their numbers, if necessary.” It said it would pay for staff to get the tests done, but that they must agree to sign a form saying the data was given voluntarily, and that they were happy for an outside health care group to process the data.

If an employee doesn’t cooperate (or is brave and honest enough to officially refuse a mandate because it wouldn’t make him/her “happy”), they would have to pay a $600 penalty in the form of increased health care insurance costs.  This is not an isolated case.  Bloomberg News Service reports a survey of employers shows that currently 5% of them use penalties if employees don’t use offered wellness programs.  Those employers won’t be in the minority,

(T)he use of penalties appears set to rise, as 58 percent of the companies said they are planning to impose penalties on workers who do not take actions to improve their health…Reduced insurance premiums and cash or gift cards were the most common forms of rewards used in respondents’ wellness programs, while penalties are exacted through increased premiums, Aon Hewitt spokeswoman Maurissa Kanter told BNA.

In the long run, this might make more people healthier, possibly reduce the incidence of cancer.  If someone told me, I’ll give you $600 to lose weight, I would do it (I should do it anyways).  But if your focus is treating or recovering from cancer, your priority probably won’t be weight loss or lowering your blood pressure.  If employers institute health mandates that are impossible or very difficult for cancer survivors to meet, they may end up getting screwed.

Might this violate the federal Americans with Disabilities Act (ADA), the law that prohibits most employers from discriminating against employees with disabilities (including those currently having cancer or a history of it in the past)?  It will depend on the facts of the particular case.   According to a paper presented at the Cornell Law School:

(T)he ADA regulations require that employees be accorded equal access to whatever health benefits are provided to other employees….However, ADA Title V allows insurers and health benefit plans to make health-related distinctions, provided that these practices are not used as a subterfuge to evade the purposes of the ADA.

A Florida county government wellness program was challenged by a class action lawsuit claiming violations of the ADA.  The case was dismissed by the trial court.  That dismissal was upheld on appeal.  In a letter dated January 18, 2013, the federal Equal Employment Opportunity Commission, the agency that enforces the ADA, admitted it hasn’t totally figured out how to handle wellness programs.  The letter states they must be “voluntary”.  If there are financial incentives or penalties, would a wellness program be “voluntary”?  The EEOC hasn’t decided this critical issue yet.

The letter states, assuming the program is “voluntary” (whatever that means), it must include reasonable accommodations for disabled employees.  It also states that if a disabled employee can’t meet a program’s goals, even with an accommodation, an employer need not maintain a higher level of benefits, as long as this employee can get “standard” benefits that are generally available to all employees.

This is territory where the law is not keeping up with employment practices and policies.  If you find yourself in this situation, talk to a lawyer experienced with employment law so you can decide what your rights are and what actions can be taken to protect them.

Wellness programs, love them or hate them, are here to stay.  Employers, employees, lawyers and judges will be exploring their boundaries.  If your employer has such a program, I hope it works out well for you.  If it doesn’t, you won’t be alone.

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