Employee Wellness Programs ‘An Invasion of Privacy’
Pay attention to an AARP lawsuit claiming abuse of privacy laws
Company-owned wellness programs are supposed to promote the health of their employees. Yet they may be more interested in their own bottom line and violate employees’ privacy, says the American Association of Retired Persons (AARP) in its lawsuit to stop the implementation of new rules for wellness programs.
The rules were issued by the U.S. Equal Employment Opportunity Commission in May and become effective in January 2017. The suit also alleges workplace wellness programs are not voluntary because these programs cost employees when they do not participate.
Corporate wellness vendors don’t have to be licensed or comply with clinical guidelines.
Under the new rules, that can be up to 30 percent of the cost of individual health insurance, which can translate to thousands of dollars. It might also cost employees their privacy — forcing them to reveal disabilities or health conditions that can lead to discrimination down the line, AARP says.
The first American wellness programs began in the 1960s. Gyms were installed in the workplace so that employees could exercise, de-stress, and stay healthy. No one checked in to see if people went to the gym — it was an optional employee perk.
Today, “wellness” efforts have become a complicated animal. Proponents claim these programs save lives. Detractors say they are coercive, invasive of privacy, and don’t work. Most programs focus on monitoring employees’ health, before and after use of the program’s offerings, through biometric screenings and health risk assessments (HRAs) — which collect data about health conditions and habits for the monitoring process.
Although the information is supposed to be collected and protected by a third-party provider, opinions differ on whether privacy is protected and if discrimination occurs as a result of information divulged about employee disabilities, diseases, or chronic conditions.
Corporate wellness vendors don’t have to be licensed or comply with clinical guidelines. Al Lewis, founder of an employee health care education company called Quizzify, and the author of three books exposing fraud in the corporate wellness industry, says the information, techniques, and results are highly suspect.
- The final rule says employers may provide limited financial rewards and other incentives in exchange for answers from employees about disabilities or medical examinations as part of a wellness program, whether or not the program is part of a health plan.
“Without question, wellness is both an invasion of privacy and a discriminatory practice,” Lewis told LifeZette. “For privacy, they ask you questions that are totally unrelated to your job performance, like how many fruits and vegetables you eat. The data shows overwhelmingly that most people lie on the more invasive questions about drug, alcohol, and cigarette use. Some programs take [a blood sample] to see if you’re lying about smoking. Ironically, the one thing they should be invading your privacy for — opioid abuse — they don’t.”
Lewis further questions whether employees’ health is the purpose of these programs — or whether financial gain is the goal.
“Sixty million employees are forced to submit to their employers’ ‘playing doctor’ or forego large incentives or be penalized,” he explained. “The employee takes it on the chin. The programs are nothing but a power play and transfer of wealth from poorer employees, who tend to have worse health status and less time to spend exercising, to richer ones, who can achieve their wellness goals. And to shareholders, who collect the money that employees forfeit.”
There is no foolproof protection against a breach of employee health information, said attorney Dina Leytes of Griesing Law LLC in Philadelphia. She said employers should demonstrate to employees their methods and technology to prevent employee health information from being accessed without authorization.
“Legally, an employer cannot discriminate over medical conditions or illness. But it’s possible for them to sneak around anti-discrimination laws,” said an attorney.
“Employees who know their employers have taken reasonable precautions with respect to their sensitive data will be more likely to participate in employee wellness programs,” she said. “Employers who do not comply with privacy standards set out in the Health Insurance Portability and Accountability Act (HIPAA) may face regulatory penalties as well as employee backlash.”
Older workers may also feel more threatened than younger employees, who are generally healthier.
At age 59, Amy Churig (not her real name) of Modesto, California, said she rigorously hides her health information at work. She has seen fellow employees “heavily pressured into retiring before they want to” when their health obviously declined. Since she has several health conditions, including depression and diabetes, she worries about her employers’ motives with their HRA questionnaires.
"Young folks lie to wellness program coordinators one way and older folks lie another," she noted. "At the last weight-loss competition, I saw how every one of the young people getting involved lied about their weight and inflated it up at the beginning, so they could win prizes. My friends and I sometimes lie and take vacation days when we have a medical procedure, because we're fearful of the opposite — getting laid off because our health costs the company more than others."
Legally, an employer cannot discriminate over medical conditions or illness, Anthony Tuorto, an attorney in Asheville, North Carolina, told LifeZette. "But it's still possible for them to sneak around anti-discrimination laws by finding fault somewhere else in the employee's career, like lacking performance. While it's unfortunate that health care costs place a burden on businesses, the last thing Americans need today is to be threatened with unemployment because their declining health costs their employer more than others."
Tuorto believes companies would find more employees willing to participate in wellness programs if the process didn't feel coercive or competitive. He suggest companies use true incentives, like extra vacation days, instead of a monetary advantage for health insurance, which everyone needs.
"Currently, most businesses use an incentive with health care premiums, and hold the premium discount over the employee's head as a bargaining chip," he explained. "That comes off as threatening: The incentive can only be received if you go through a 'literal' marathon. It becomes an obstacle between an employee and affordable health care."
Pat Barone, MCC, is a professional credentialed coach and author of the Own Every Bite! bodycentric re-education program for mindful and intuitive eating, who helps clients heal food addictions.