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Wellness Programs Bad News for PWDs

By Mike Ervin

The word “voluntary” is not hard to define. Merriam-Webster dictionary says it means “acting or done of one's own free will.” But the Equal Employment Opportunity Commission has come up with a new definition of voluntary as it applies to wellness programs that are increasingly prevalent in workplaces.

Disability rights organization have resolutely and unanimously spoken out against this redefinition because they say it contradicts and weakens the ADA and may well severely penalize people with disabilities, or PWDs, who are employed in workplaces that have wellness programs.

Wellness programs are supposed to promote good health. Employers or the insurers covering their employees might encourage participation by offering incentives to engage in a health-promoting program such as smoking cession or weight-loss counseling. Workers also might be asked to have a biometric screening, which measures health indicators such as blood pressure and body mass index (BMI). Those who participate might receive a cash bonus, reimbursement for course fees, a discount on insurance premiums or other reward for taking part.

The problem is that people with disabilities have long been reluctant to disclose medical information to employers because it can be used to discriminate. An employer’s perception of how well a person with a certain diagnosis or disability can function on the job often does not match reality.

That’s why Title 1 of the Americans with Disabilities Act says that employers covered by the law cannot “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

But it also says employers “may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site.”

The EEOC previously issued a guidance stating that a voluntary wellness program does not run afoul of the ADA “as long as an employer neither requires participation nor penalizes employees who do not participate.” But an uproar ensued after EEOC’s new guidance in April stated that a wellness program qualifies as voluntary under the ADA as long as the incentive to participate offered to employees “does not exceed 30 percent of the total cost of employee-only coverage.”

In response, 68 organizations representing patients, health care providers, disability rights activists and researchers signed onto a comment saying they are “gravely concerned that the proposed rule would erode long-standing and important protections afforded to employees under the ADA …” Among those organizations are the National Employment Lawyers Association, the Hepatitis Foundation International, the Autistic Self Advocacy Network, the Academy for Eating Disorders, the American Academy of Pediatrics and the National Hemophilia Foundation.

“To put this in real terms,” the comment said, “the average cost of a health plan in 2014 was approximately $6,000 for a single worker. This would allow employers to penalize employees who refuse to participate in wellness programs upwards of $1,800 for an average individual; for some people with higher cost health insurance, the penalties could even exceed $3,000. Financial incentives of this magnitude are hardly voluntary and instead will allow employers to coerce employees into disclosing medical information they would otherwise want to keep private. Employees will have no choice but to disclose their private health information if they want access to affordable health insurance.”

Little People of America, a national grass-roots support and advocacy organization for people with dwarfism and their families, blasted the proposed revision as “inherently and unavoidably discriminatory against people with disabilities …”

According to the group’s statement, biometric screenings are problematic. “We know of some examples of persons with the most common form of dwarfism, achondroplasia, who show as obese according to BMI measurements, even when these same individuals have completed full marathons after months of athletic conditioning and training. In addition, some of the biometrics … like blood pressure, are very difficult to accurately measure in people with dwarfism because of the inaccessibility of the medical equipment that takes the measurements.

“Thus,” the statement continued, “these biometric benchmarks would not promote the health and well-being of people with dwarfism at all, but instead erect yet another barrier to the fair treatment and inclusion of our community in the employment and economic arena … This is why we so strongly oppose such a rule that would literally place economic sanctions on the very bodies we happen to occupy.”

Claudia Center, senior staff attorney for disability rights at the American Civil Liberties Union, agreed that wellness programs are inherently unfair. “People with disabilities who take medications, who are heavier, who have mobility limitations and so on are harmed much more by these programs. They are required to disclose non-job-related information about their health, and they are expected to participate in activities that are more difficult or even impossible.”

What prompted the definition change? In the proposed rule change, EEOC stated that the Affordable Care Act permits and even promotes wellness programs in a lenient manner that conflicts with the ADA. Therefore, it was necessary to revisit the previous definition of voluntary.

But comments submitted by the Disability Rights Education and Defense Fund took strong issue with that conclusion, arguing that nothing in the ACA prohibits other laws from imposing more stringent standards.

“The wellness provisions in the ACA … do not repeal by implication the ADA’s medical inquiries provisions,” the group wrote. “If Congress meant to repeal the wellness program requirements of the ADA, it would not have done so without saying anything. There is nothing in the ACA … indicating congressional intent to repeal the ADA’s medical inquiries provisions.”

Center of the ACLU said she believes there is probably political pressure to give employers and insurers more ability to implement wellness programs.

“Despite evidence to the contrary, the employer community really believes that punitive wellness programs will save them money,” she said. “So the employer community is insisting, from what I understand, that letting employers implement these types of wellness programs is essential to controlling health care costs and that these programs were part of the compromise that led to the ACA. So they say the employers need to have them and the EEOC is standing in the way. Honestly, I don’t think anyone benefits, but the employers think that they will.”

After reviewing all comments, the EEOC can either proceed to adopt the new definition, revise it or withdraw it.

Calls to the EEOC seeking comment were not returned.


Mike Ervin is a writer who lives in Chicago. His blog, "Smart Ass Cripple," appears at smartasscripple.blogspot.com.


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