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Crossing the line?

Do some health-contingent wellness programs risk employee privacy?

(page 1 of 4)

From the pages of In Business magazine.

With health care costs skyrocketing across America, businesses are continually looking for that magic bullet to help control costs now and into the future. Wellness programs have proven to be a viable tool toward that end, encouraging employees to live healthier lifestyles so they can ward off medical issues and, in turn, help with corporate health insurance costs.

But as companies encourage participation in such programs, might they sometimes run the risk of overstepping privacy bounds?

The intentions are good, opines Thomas Shorter, Godfrey & Kahn shareholder and leader of its health care practice group. Money saved on health care plans can be redirected toward other overall benefits, such as wages, “but part of it gets a little nosey into the habits that we all have around smoking, drinking, or all the things you don’t want to tell your physician,” he laughs.

Shorter says the U.S. Equal Employment Opportunity Commission is watching this issue closely to see that companies don’t impose health-contingent wellness plan guidelines that are so strict they become discriminatory.

“What happens when you garner that [health] information and try to influence behavior?” Shorter asks. Could a company tell an employee that their health insurance rate would go up if they didn’t stop smoking cigars, for example?

In Wisconsin, employers are not allowed to discriminate based on whether a person smokes or not, but that’s not the case everywhere. In 2006, Ohio-based Scotts Miracle-Gro Co. made the decision not to hire smokers because it claimed smoking-related health care costs were too high. That same year, it fired a new hire because a urinalysis revealed the man had nicotine in his system. He sued the company but lost.

Scotts wasn’t the only company adopting such policies. Health care centers and hospitals around the nation adopted similar plans.

At the time, a related CNN story quoted Dr. Michael Siegel, Boston University professor of public health, who blasted an Atlanta-based medical center for its smoke-free hiring policy: “Regulating someone’s private behavior in their own home ... really represents employment discrimination and has nothing to do with qualifications for the job. If the hospital is so concerned about health, you can make the exact same argument about overweight people.”

Fast-forward to 2015.

Shorter says it becomes a risk shifting versus privacy issue. “Who bears the risk financially for bad habits from a health perspective? If someone allows their weight to balloon to morbid obesity, who accepts the fiscal responsibility of the resulting health care costs? There’s good debate out there about that.”

Some believe the employee should, while others follow the school of thought that everyone ought to chip in to share costs for all.

“In an increasing number of cases, obesity has been deemed a disability under the ADA,” notes Jennifer Mirus, attorney with Boardman and Clark LLP. “Generally, in order to make that finding, the obesity has to be tied to some sort of underlying psychological or physical condition, like a thyroid condition or something, but the fact of the matter is, it is being found to be a disability.

“Basically, employer considerations of physical attributes have to be job-related. That’s the general standard.”

Because there can be a requirement that the employee undergoes a medical assessment in defined health-contingent wellness program, she explains, those programs must be carefully designed and implemented to comply with state and federal law.
“If you tell someone that you’ll pay 90% of their health insurance premium if they undergo medical tests, that’s deemed a penalty against those who will not do the test,” she says.

Wisconsin also has laws protecting employees’ use of lawful products, including alcohol or tobacco, with only a few very specific exceptions, she says. For that reason, employers can’t include a company policy in their employee handbooks stating that employees would face termination if found to be using lawful products on their own time and away from the job.

Proceed with caution, she advises employers setting up a corporate wellness program. “There are many laws that impact an employer’s consideration of health-related information in the workplace.”


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