Wednesday, January 9, 2013

Aurora Employees in Uproar Over Wellness Program

Aurora Healthcare issued a letter to employees recently announcing a new plan to offer health insurance incentives based on their Body Mass Index, or BMI.  These are commonly referred to as "wellness programs" and it has many employees in an uproar because they feel they are being told how to care for themselves.  From the TMJ4 story on the healthcare system's announcement:
In a letter to staffers, managers announced a $13.33 credit every two weeks for folks who meet a 'weight target' or BMI of 30.

The letter goes on to explain nearly two-thirds of the company's caregivers were obese or overweight.

While wellness programs like Aurora's are fairly common and on the rise across the country, many question their legality.

Do wellness programs violate the law? 

There are not a lot of cases that address this issue but it does appear the law allows these programs.  However, a separate issue arises over whether employers can lawfully terminate or otherwise discipline an employee who does not follow the program. 

There may also be issues with how the wellness program is administered as the ADA has a provision on disability-related inquiries and HIPAA also specifically sanctions a program in which eligibility to participate in a group health plan is conditioned on an employee's completion of a health risk assessment prior to enrollment.  This type of inquiry was the basis of a suit in the 11th Circuit in Seff v. Broward County, No. 11-12217 (11th Cir., Aug. 20, 2012).  In Seff, a class action was filed  claiming that the program violated the ADA's prohibitions on disability-related inquiries and medical examinations.

In Seff, the governmental group health insurance plan involved required participants to complete a health risk assessment and undergo a health screen, including a "finger-stick" blood test, to obtain a $20 premium discount for each twice-monthly paycheck. The screening and assessment were intended to identify participants who had one or more of five conditions: asthma; hypertension; diabetes; congestive heart failure; or kidney disease. Those identified became eligible to participate in disease management programs and for additional benefits aimed at treating and managing care for those conditions.  The district court had granted summary judgment in favor of the employer and the 11th Circuit affirmed as the issue narrowed down to whether the wellness program was a "term" of the county's health plan.

While employers enjoyed a victory in Seff, this does not suggest all wellness programs and their administration do not violate law.

Other Pitfalls for Employers

Also common across the country is employers who refuse to hire cigarette smokers.  While that may be lawful in other states, it is prohibited under the Wisconsin Fair Employment Act (WFEA) which prohibits discrimination on the basis of an individual's "use or nonuse of lawful products off the employer's premises during nonworking hours."  The same would hold true with alcohol.

Another area of concern is where obesity is a target as many courts have held obesity to be a disability under the Americans with Disabilities Act (ADA), especially in light of the new Americans with Disabilities Act Amendments Act (ADAAA).  The WFEA also is of concern because disability discrimination is a "case-by-case" analysis and Wisconsin case law already provides that obesity can be considered a disability under the WFEA if the "characteristic at issue constitutes such a significant deviation from the norm that it makes achievement unusually difficult or limits the capacity to work."

Thus, employees who are concerned about wellness programs in their workplace are advised to consult with an employment attorney to better analyze the program and their legality. 

3 comments:

  1. If you want your employer to pay for any portion of your health care costs, I don't see what you have to complain about if the employer offers incentives for healthier (and thus less-expensive-to-insure) employees.

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  2. Agreed, yet some employees see it as you are taking money out of their pocket in an unfair way. If it is an incentive that I think is going to be hard for me, but easy for others to reach, then it feels unfair to me, regardless.

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  3. Hello,

    my name is Jennifer Luby. I am a French TV journalist currently working on a story about corporate wellness programs and weight loss challenges between co-workers in offices, on the initiative of the boss or one of the employee.
    For the purpose of a 15 min TV piece about the pros and cons of such programs in the US, I was wondering in you knew about a client's case who suffered from pression or any inconvenience leading to severe discrimination (on person, wage or healthcare costs for instance) related to a weight loss competition organized in their office. Either because they were overweight, or because they didn't reach the assigned goals, or because they refused to participate...

    Please call me to discuss it furthermore. If you have a client who could tell his/her story (they can remain anonymous) we would also be honored to interview a lawyer or representative of your company about this new issues corporate wellness programs can raise.

    Best regards,
    Jennifer Luby

    ReplyDelete