Employer-sponsored wellness programs are praised for motivating employees to make healthier lifestyle choices, thereby preventing serious illnesses and reducing healthcare costs. However, critics say privacy protections for some employees are being violated by these programs, which are predicated on workers sharing their health data.

The Senate Health, Education, Labor and Pensions Committee on Thursday conducted a hearing to determine how successful these programs are in enabling employees to lead healthier lives and to figure out how they can be improved as well as expanded. Privacy surrounding health information disclosed by wellness plans and consequences faced by those who do not participate were key parts of the hearing.

As part of the Affordable Care Act, Sen. Lamar Alexander (R-Tenn.), chairman of the committee pointed out that employers can offer financial incentives to their employees to encourage participation in wellness programs — in fact, he added “it was one of the only parts of the ACA on which nearly everyone agreed.”

With about 60% of insured Americans getting health coverage from their employers, Alexander concluded that “it is hard to think of a better way to make a bigger impact on the health of millions of Americans than to connect the consensus about wellness to employer-based insurance for 178 million people.”

However, ranking member Sen. Patty Murray (D-Wash.) and other Senate committee members expressed their concerns that employer-sponsored wellness programs could impose significant financial penalties on workers who do not wish to share their protected health information.

In particular, she took the Equal Employment Opportunity Commission to task for its 2016 regulations on employee wellness programs which provided that an employee’s decision not to participate in a wellness program was voluntary “so long as the employee did not have to pay a penalty greater than 30% of the cost of health insurance — in other words, thousands of dollars,” she said.

Murray said that costly of a penalty is a “problem” for the millions of employees and their spouses who choose to exercise their privacy rights and decline to provide to their employers sensitive health information such as the existence of a disability or genetic disorder.

“What the law says is that revealing information has to be voluntary — and, telling people that it will cost you $1,500 if you don’t reveal very sensitive medical information, I think stretches the bounds of what constitutes voluntary,” added Sen. Elizabeth Warren (D-Mass.).

According to testimony from Jennifer Mathis, director of policy and legal advocacy at the Bazelon Center for Mental Health Law, employees who want to participate in these wellness programs are asked “about all manner of health and medical information on a variety of levels of detail.”

“We need to make sure we find the right balance for wellness programs that protects workers’ rights under the Americans with Disabilities Act, HIPAA and the Genetic Information Nondiscrimination Act — three laws that were written and passed by this committee,” added Murray.

Existing law
While the ACA allows employers to offer premium discounts to employees who participate in wellness programs, Warren cautioned that it does not eliminate the protections already in federal law. Employers “cannot discriminate against their employees on the basis of genetic information, health status or disability.”

Likewise, Mathis argued that workplace protections — especially privacy protections — provided by the ADA and GINA must be enforced.

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“People with disabilities need these protections,” said Mathis, who also testified on behalf of the Consortium for Citizens with Disabilities. “It is particularly important to ensure that employer-based wellness programs are implemented in ways that promote healthy behaviors without eroding longstanding and critical workplace protections for people with disabilities.”

However, Mathis pointed out that the EEOC last year “significantly rolled back” protections it had previously enforced ensuring that employers could not penalize employees for declining to provide their health information as part of a wellness program.

“The agency instead permitted steep financial penalties for employees who choose to keep their health information private and more steep penalties if their spouses chose to keep their health information private, making this choice far from a voluntary one for many people,” added Mathis.

According to Mathis, a federal judge has since ruled that the EEOC violated the law and failed to provide a reasoned justification for this change in position. “The agency now has an opportunity to revisit its regulations and do the right thing to afford people the rights guaranteed by the ADA and GINA,” she said. “The most important thing for the EEOC to remember is that their job is to apply the ADA and not to rewrite it.”

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