The suit contends Yale’s program “fines” employees up to $1,300 a year if they choose not to participate. Plaintiffs allege participation in the wellness program, known as the Yale Health Expectation Program (HEP), requires them to share their private medical information with their employer, in violation of the ADA and GINA.
The ADA and GINA prohibit employers from requiring employees to provide medical or genetic information. Plaintiffs contend the financial incentive is really a penalty of $1,300 per year, which makes participation in HEP involuntary. The complaint states HEP’s “penalty” is the highest among employers in the nation. The suit, filed on July 16 in the U.S. District Court for the District of Connecticut, is currently in litigation.
Wellness programs can be good for both the employer and the employee, says Roger Klein, M.D., J.D., a faculty fellow at the Sandra Day O’Connor Law School at Arizona State University and a policy advisor to The Heartland Institute, which publishes Health Care News.
“Programs can benefit individual employees personally in the form of better health,” said Klein. “They may also benefit the employer through a more productive workforce, reduced absenteeism, and lower overall health insurance costs.”
Incentive or Coercion?
Rewards are a central component of wellness programs, says Klein.
“Financial incentives—for example, discounts on health insurance—can be an important tool in encouraging employees to engage in health-promoting activities that are in their self-interest,” said Klein. “Loss of these types of tools risks losing the participation of many people who would potentially benefit from their employers’ programs, increasing health burdens and potentially costing lives.”
The important question in the lawsuit is whether wellness programs interfere with an employee’s autonomy, says Klein.
“If, or at what point, financial incentives or their structure begin to take on an unacceptable level of coerciveness, is that in the eye of the beholder or something that needs to be established?” said Klein.
Another issue is whether the program affects lower-paid workers differently from higher-paid ones, says Marilyn Singleton, M.D., J.D, president of the Association of American Physicians and Surgeons.
“Incentives, such as lower health insurance premiums or cash bonuses, are less draconian [than a penalty] but coercive nonetheless,” said Singleton.
“A 30 percent discount on insurance premiums can be a huge bonus for an employee simply for not participating to protect privacy,” said Singleton. “These employees signed up for a job, not intrusion into their personal medical information. True voluntariness would dictate that the program be available to employees who were interested in improving their health, not tied to finances.”
Burden of Proof
The plaintiffs will have to prove the wellness program, if coercive, forces participants to divulge private medical information in violation of the ADA or GINA.
“If participants have the choice between an invasive medical procedure, such as a lab test or physical exam, or something where privacy can be protected, like a fitness program or educational seminar, they would have a more difficult time making that case,” said Singleton.
Fitness programs may raise similar questions, says Singleton.
“In programs offering fitness activities or sedentary educational alternatives [to be ADA-compliant], the inherent problem is how the employer measures the employee’s success,” said Singleton. “Should one employee get the same bonus for sitting in a seminar hearing about diet choices but never being subject to a ‘weigh-in’ as someone who subjects themselves to the indignity of getting an ‘F’ for their weigh-in results?”
Regulation for All
Government regulation is behind the entire controversy, says Singleton.
“Since the U.S. Equal Employment Opportunity Commission has inserted itself into our employment affairs, it should ensure that compliant programs have options and metrics for healthy individuals to participate and earn bonuses along with unhealthy colleagues,” said Singleton.
Klein says it is likely government will be the major source of such health-behavior mandates as it takes on an ever-larger role in providing health care.
“Once government foots the bills, government actors may believe they have a right and even a duty to control citizens’ behavior in areas where it would impact health care costs,” said Klein.
Kelsey Hackem, J.D. ([email protected]) writes from Washington state.