Wednesday, March 20, 2013

CVS Implements Controversial Policy Requiring Employees to Disclose Weight, Body Fat and Other Vital Statistics

This week much buzz was made surrounding CVS' new policy requiring its employees to submit detailed health profiles to their insurance company or pay a monthly fine to continue receiving health coverage.  Specifically, all employees must submit their weight, body fat levels, blood glucose levels and other vital statistics before May 1, 2014, or face a monthly $50 fine — $600 per year.

The move is obvious to employers who want to save on insurance cost of employees with poor health and do little-to-nothing to improve their health but the move is also shocking and insulting to employees and begs the question of whether this is lawful as this policy is even more intrusive than popular wellness programs that have been popping up lately.  The lawfulness of this policy will probably be tested against the Americans with Disability Act's (ADA) provision on unlawful "medical inquiries."

A medical or disability-related inquiry is a question or series of questions that is likely to elicit information about a disability.  Medical inquiries under the ADA are addressed at three stages: pre-offer, post-offer, and during employment.  CVS' policy obviously applies to the during employment stage.  At this stage, the ADA provides that an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.  It is arguable that this is a disability-related inquiry because the disclosures could elicit information about someone being diabetic, having a weight problem considered a disability under the ADA, has a heart condition, etc.  

What does "job-related and consistent with business necessity mean, exactly?  

The EEOC's enforcement guide on medical inquiries states that "[o]nce an employee is on the job, his/her actual performance is the best measure of ability to do the job. When a need arises to question the ability of an employee to do the essential functions of his/her job or to question whether the employee can do the job without posing a direct threat due to a medical condition, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination."  Further, the EEOC states that a medical inquiry may be made, once an employee is on the job, "when an employer 'has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.'"  Under this guidance, CVS is arguably making unlawful medical inquiries because they are required of ALL employees without any reasonable belief, based on objective evidence of any of the two items listed above.  Further troubling is the penalty associated with an employee's refusal or neglect to provide the required information.

It will be interesting to see how this policy pans out and it seems fairly certain the policy will be tested in Court.

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