Intrusive health bill risky for employees

I've reported before on the scam that is the workplace "wellness" program. These are ostensibly voluntary initiatives that aim to goad employees into healthier lifestyles-say through diet, exercise and smoking cessation-by offering them a discount on their health insurance premiums or some other benefit.
In practice, the voluntary programs can shade into mandatory programs, while giving employers an otherwise illegal window into their workers' medical histories. A bill now making its way through Congress would give employers an even stronger hand in forcing workers to give up their privacy.
The Preserving Employee Wellness Programs Act, which sailed through the House Committee on Education and the Workforce recently on a 22-17 party-line vote with Republicans in the majority, is "an ugly piece of legislation," warns Nicholas Bagley of the University of Michigan. The measure, he reports, would "effectively allow businesses to require their employees to disclose lots of sensitive medical data, including their genetic information."
Lurking in the background of this bill is a mismatch between federal employment discrimination and health-care laws. The Affordable Care Act and HIPAA, the Health Insurance Portability and Accountability Act of 1996, provided limited exemptions to medical privacy protections at the workplace. Under those laws, employers with "wellness" programs can discriminate between workers who join the programs and those who don't. The latter can be charged up to 30 percent more for their employer-sponsored health insurance.
That's not peanuts: With the average cost of a family plan set at more than $18,000, a 30 percent surcharge comes to more than $5,400.
Yet as Bagley explains, the Americans with Disabilities Act says employers can't require workers to take a medical exam unless it's "voluntary" and the Genetic Information Nondiscrimination Act prohibits employers from asking for workers' "genetic information," including any "manifestation of a disease or disorder in family members."
Employers have been grousing that these conflicts hamper their ability to offer wellness programs. Last year, the federal Equal Employment Opportunity Commission saw things the employers' way and liberalized its interpretation of when a wellness program is "voluntary."
This was a reversal from the EEOC's position just two years earlier, when it sued Honeywell for what it said was a coercive arrangement in which workers who opted out of its wellness screening were subject to thousands of dollars in insurance-related penalties. A federal court in Minneapolis sided with Honeywell. But the EEOC's about-face drew a lawsuit from AARP, which contends that the 2016 rules "enable employers to penalize employees substantially for choosing not to divulge medical or genetic information about themselves or their families." The AARP lawsuit is headed for trial in federal court in Washington.
That's where the Preserving Employee Wellness Programs Act comes in. It was introduced by Rep. Virginia Foxx, R-Va., a GOP lawmaker who previously was best known for sedulously defending for-profit colleges like Corinthian while collecting campaign contributions from that industry. Her bill presumptively would consider workplace wellness programs to be in compliance with both the ADA and GINA.
"If you think that's no big deal," Bagley observes, "imagine that your spouse is an alcoholic or that your 22-year-old son was just diagnosed with schizophrenia. Employers aren't supposed to use that kind of information to discriminate against you. But they'll be sorely tempted. Through your employer-sponsored coverage, they're on the hook for your family's medical expenses." The act, he says, "sweeps aside federal anti-discrimination law in order to give businesses more power to root about in their employees' lives."
This would be almost OK, if there were any evidence that workplace wellness programs work. There isn't. Their popularity may owe more to the assiduous salesmanship of the firms hawking these programs than to their efficacy. Most of the data about the efficacy of wellness programs come from vendors' studies, which have been roundly questioned.
The effect of the bill wouldn't be to enhance workers' health, but to give employers more ways to screen people out.