Obama Is Smack In The Middle Of A Brewing Fight Over Workplace Wellness

03/14/2015 09:00 pm ET | Updated Mar 17, 2015

If you work for a big company that offers you health insurance, chances are that your employer has asked you to take part in some kind of "workplace wellness" program. It might mean nothing more than answering a few questions about your diet and exercise habits. Or it could mean providing more detailed information about your medical status and lifestyle -- and, in some cases, agreeing to individualized targets for weight loss, blood pressure and other vital health indicators.

In principle, the choice to participate in the program is yours. But if you say no, your employer might charge you higher health insurance premiums, to the tune of thousands of extra dollars a year.

Is that proper? Is that legal? Those questions are the subject of a dispute that has pit consumer advocates, who are leery of these arrangements, against employers, who gush about them.

It's not clear whose side the Obama administration wants to take.

The purpose of workplace wellness programs, as the term implies, is to keep employees from getting sick and thereby to hold down the cost of company health insurance. The programs take many forms. At their best, they help workers with chronic medical problems find their way to professionals and organizations, such as dietitians and smoking cessation groups, that promote better health. About a decade ago, a handful of large employers that tried these programs reported significant savings, and that got the attention of corporate America. Today, according to the most recent Kaiser Family Foundation/HRET survey, 74 percent of all companies offering health benefits -- and 98 percent of large companies offering health benefits -- have at least one type of wellness initiative in place.

"Instead of passively offering health care benefits, employers are working with their employees as partners," said Amanda DeBard, a spokeswoman for the Business Roundtable, which represents major corporations. "At the heart of this change are wellness programs, which are designed to give individuals the information and tools they need to be and stay well."

Whether workplace wellness programs are actually effective remains, at best, unproven. The most recent and comprehensive research has questioned whether wellness programs really reduce company medical spending, except perhaps by passing higher costs onto employees who either don’t want to participate or can’t hit health improvement targets.

"The best evidence suggests that workplace wellness programs based on financial incentives probably don’t work as intended," said Jill Horwitz, a UCLA law professor and co-author of a major study on wellness programs that appeared in the journal Health Affairs. "Given the evidence, it isn’t likely that workers are using less medical care because they responded to financial incentives to improve their health."

"So how are they working? How are companies earning such big returns on their investments in these programs? The most likely explanation is that they are making money by shifting costs to workers most at risk of failing the tests, and those workers are likely to be poorer and less healthy than their colleagues," Horwitz said.

Another problem is privacy. The screenings sometimes ask for deeply personal information -- whether people are sexually active or feeling stress at home, for example. Women have been asked whether they plan or expect to get pregnant. Although business groups that support wellness programs say that the information is kept safe and confidential, consumer advocates worry that it could end up in the hands of third parties or the employers themselves, who might use it for personnel decisions.

These arguments have been going on for a few years. But it's the financial incentives that employers are attaching to the programs and the questionnaires that have attracted scrutiny from federal regulators and, in the process, started a new political fight.

Early on, companies would offer minor financial incentives to encourage participation by workers -- a $25 gift card, for example, or maybe a $100 annual rebate on health insurance premiums. Today, some companies are offering much larger incentives, worth up to thousands of dollars a year, and tying those incentives not simply to participation in the wellness program but demonstration of progress toward health targets. As one benefits consultant told Reuters' Sharon Begley, who has been covering this story in depth, “Wellness-or-else is the trend.”

The companies introducing these schemes say that they are acting within constraints set by Obamacare, aka the Affordable Care Act. Under those guidelines, which expanded upon regulations written previously by the Clinton and Bush administrations, employers can offer incentives equal to as much as 30 percent of premiums (with an extra 20 percent for participation in tobacco testing and counseling). The law also provides a small amount of funding to promote and study the effectiveness of workplace wellness programs.

But Obamacare isn't the only statute that matters here. Another federal law, the Americans with Disabilities Act, bans employer discrimination based on someone's health or medical condition. In addition, it prohibits employers from asking about medical conditions without a legitimate business-related reason.

Enforcement of the ADA falls to the Equal Employment Opportunity Commission. Last year the EEOC started launching lawsuits against employers for imposing substantial penalties on workers who wouldn’t complete assessments as part of wellness programs. Wisconsin-based manufacturer Flambeau, for example, allegedly informed employees that they could lose contributions to their company health insurance –- and face unspecified “disciplinary action” -- if they refused to answer health screening questions. Another Wisconsin company, Orion Energy Systems, allegedly fired an employee who declined to participate. (Both Flambeau and Orion Energy declined to comment when contacted by The Huffington Post.)

Last October, the EEOC filed a third lawsuit -- this time, against Honeywell International, which is based in New Jersey. Honeywell’s program, in place at a Minneapolis office, could cost employees who don't participate as much as $2,000 more for health care, with yet more money riding on participation in tobacco testing. Honeywell has defended the program, telling Business Insurance in November that "Honeywell wants its employees to be well-informed about their health status not only because it promotes their well-being, but also because we don't believe it's fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

Employer groups have complained to the EEOC, which has said it will issue a new regulation clarifying what’s legal and what’s not. They have also taken their complaints directly to the White House, reportedly threatening to withdraw support for Obamacare overall if they didn’t get their way. In early December, President Barack Obama addressed and met with members of the Business Roundtable. The next day, White House press secretary Josh Earnest reiterated the administration’s support, at least in principle, for wellness plans.

“The EEOC is an independent agency, so it’s not an agency over which we exercise much, if any, control,” Earnest said. “And I don’t want to be in a position of commenting on pending litigation. But I can say, as a general matter, that the administration, and particularly the White House, is concerned that this is -- or this at least could be -- inconsistent with what we know about wellness programs and the fact that we know that wellness programs are good for both employers and employees.”

As Earnest said, the EEOC is nominally independent. But the White House statement rankled consumer advocates, who saw it as a not-so-subtle attempt to influence the agency's deliberations.

“There’s clearly a lot of pressure on the EEOC, including from the White House,” said Jennifer Mathis, director of programs at the Bazelon Center for Mental Health Law. “You have this public statement from Josh Earnest, suggesting that what the EEOC was doing in its litigation was wrong. And wellness industry representatives have publicly taken credit for that.” (Mathis was referring to a post at a wellness industry blog.)

In a statement to The Huffington Post, White House spokeswoman Jessica Santillo said, “The Administration supports workplace health promotion and prevention as a means to reduce chronic illness, improve health, and limit growth of health care costs, while ensuring that individuals are protected from unfair practices.”

Sources close to the agency tell The Huffington Post that a draft of the new regulations is already circulating internally at the EEOC, which means the agency could unveil them as soon as this coming week. But the agency’s rules are unlikely to be the final word on the subject. On March 3, a group of Republican lawmakers, including Sen. Lamar Alexander of Tennessee and Rep. Tim Walberg of Michigan, introduced legislation that would establish the legality of wellness programs that fall within Obamacare’s guidelines.

“This is yet another example of the EEOC being out of step with employers and employees,” Walberg said. “Innovative approaches that empower employees to take more control of their personal health care decisions should be encouraged, not stymied by greater government overreach.”

Also on HuffPost:

Health Care Reform Efforts Throughout History
Suggest a correction