What You Need To Know: Fairness, Privacy, And Wellness Programs

Gwynne Monahan

Wellness programs are all the rage, with 70% of companies offering them now, compared to 58% in 2008.

The explosion in popularity is prompting questions that don't have clear answers. How do you balance encouraging a healthy lifestyle with fairness? And what about private health information that is collected through health risk assessments, biometric screenings, and fitness trackers?

With the Equal Employment Opportunity Commission (EEOC) filing lawsuits over fairness, and employees leery of sharing personal health information with employers, HR departments find themselves caught between a rock and a hard place. Wellness programs are beneficial in many ways, but the patchwork of laws is enough for any HR department to throw up its hands and cross its fingers.

Don't do that. Instead, keep this word in mind when implementing or reviewing wellness programs: choice.

A Brief Overview Of Wellness And The Law

Healthcare.gov defines a wellness program as any program "intended to improve and promote health and fitness that's usually offered through the work place." Examples include smoking cessation programs, weight loss programs, and preventative health screenings.

Laws that govern wellness programs are an acronym soup: Health Insurance Portability and Accountability Act (HIPAA), the Affordable Care Act (ACA), the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and even the Employee Retirement Income Security Act (ERISA).

And since the Affordable Care Act (ACA) lets companies reward or penalize participates "up to 30 percent of health insurance premiums, deductibles, and other costs," wellness programs can make a good cost-saving measure, too.

Look at Honeywell International, for example. Employees who opt-out of health screenings pay $500 more a year in premiums, and lose out on a company contribution to defray out-of-pocket costs. Depending on salary and spousal coverage, that can be anywhere between $250-$1,500 a year. Reuters reports that "the company is benefiting financially from the penalties. Slightly more than 10 percent of the company's U.S. employees, or roughly 5,000, did not participate, resulting in savings of hundreds of thousands of dollars."

The EEOC Weighs In On Fairness

Penalizing employees for opting out of wellness programs because they don't want employers to know cholesterol levels, body weight, or blood pressure levels is unfair in the eyes of the Equal Employment Opportunity Commission (EEOC).

The EEOC has sued Honeywell and two other companies over wellness programs it deems unfair, arguing that "requiring workers to answer personal questions in the health questionnaire - including if they ever feel depressed and whether they've been diagnosed with a long list of illnesses "“ can violate federal law if they involve disabilities."

The two keywords to remember are "unfair" and "requiring." Wellness programs are meant to "improve and promote health and fitness," not force employees to undergo screening, or penalize them for opting out. The EEOC questions the fairness of such programs as they look "overly burdensome," and like "a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease."

The courts have not agreed with the EEOC so far, citing a safe harbor provision within the ADA. In one case, however, the court pointed out that it can't "determine the likelihood of success on the merits given the great uncertainty in how the ACA, ADA and GINA are intended to interact" so there needs to be "clarity under the laws."

The EEOC issued a notice of proposed rulemaking last year in an effort to clarify. It proposes changes "both to the text of the EEOC's ADA regulations and to interpretive guidance explaining the regulations that will be published along with the final rule." It is expected to issue a final ruling as early as spring of this year.

Privacy And Wellness Programs

Wellness programs also present privacy concerns.

Be it health risk assessments, biometric screenings, or fitness trackers like FitBit, a fair amount of data is collected. While federal law limits the personal health information employers can get from wellness programs, and most health vendors aggregate and anonymize data, NPR notes that "sometimes employers can see individual results" which creates the potential for "discrimination against those with disabilities or chronic illness."

This aspect can make employees uneasy, and HR professionals do try to alleviate the concern. Meg Bach, who leads IBM's health promotion efforts, explains in Kaiser Health News that aggregated data is used "to make program changes, to make business decisions, to help focus our efforts "¦ in support of the employees."

Still, employees elsewhere have raised concerns about a lack of clarity over who has access to what, and personal medical information getting out somehow, especially as data breaches continue to make news.

Seeing an opportunity, FitBit went through the arduous process to become HIPAA-compliant for its Corporate Wellness offering. Its Wellness Community Pledge offers the following advice on the handling of employee wellness data:

  • Provide participants with notice of how end user data will be used in your program if it will be shared outside the program, who will have access to it, and whether you will have access to individual or aggregate data.
  • Limit the user data you access from Fitbit to Data that is necessary to provide the program, including any incentives you provide.

Cultivating Wellness Through Choice

In the meantime, what are HR professionals to do?

For starters, keep in touch with legal counsel while implementing or renewing wellness programs.

As for your wellness program, a common thread throughout successful wellness programs is the cultivation of choice. As Kelly Maher, wellness coordinator for online retailer Zappos, told Mashable, "it's about getting people to want to do things voluntarily, not forcing them." He cites Race Tuesdays as an example, where he "takes out playground toys, puts them on the plaza and sees what happens. Organically, people will come outside, shoot some hoops, play tetherball, volleyball and monkey around."

Using playground toys is also an example of designing wellness programs around activities rather than fitness trackers so even those who don't own the latest gadget feel as if they can still choose to participate. Another way is through smaller actions, like taking the stairs instead of the elevator, or hosting standing meetings.

Choice doesn't have to be limited to engagement with a wellness program, however.

You can cultivate choice early in the process, too, by involving employees in developing or enhancing your wellness program. This can help address their concerns about the privacy of their health data.

Do you have a wellness program in place? How do you address employee privacy concerns? Let us know @goodhiretweets #BuildGreatTeams

Gwynne Monahan

Gwynne Monahan


Gwynne Monahan is a writer, editor, and consumer of knowledge who focuses on the intersection of law, technology, and HR. When she’s not writing, you can usually find her enjoying some jazz or a game of soccer.

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