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When Does Workplace Wellness Become Coercive?

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Christine White pays $300 a year more for her health care because she refused to join her former employer's wellness program, which would have required that she fill out a health questionnaire and join activities like Weight Watchers.

"If I didn't have the money ... I'd have to" participate, says White, 63, a retired groundskeeper from a Portland, Ore., community college.

Like many Americans, White gets her health coverage through an employer that uses financial rewards and penalties to get workers to sign up for wellness programs. A small but growing number tie those financial incentives to losing weight, exercising or lowering cholesterol or blood-sugar levels. The incentives, meanwhile, can add up to hundreds, or even thousands, of dollars a year.

Employers say wellness programs boost workers' health and productivity while helping companies curb rising health care costs. President Obama's signature health law allows employers to increase those financial incentives. But asking workers to undergo medical exams or give personal medical information is sharply limited by another law, the 1990 Americans With Disabilities Act, which prohibits such questioning — except under limited circumstances, such as by voluntary wellness programs.

So when is a wellness program voluntary, and when do employer incentives cross the line and become coercive?

A proposed rule published this spring by the Equal Employment Opportunity Commission attempts to strike a balance between employers who want to use incentives to drive worker participation and consumer advocates who see penalties as de facto coercion. The plan drew about 300 comments from employers and consumer groups by a June 19 deadline, with plenty of criticism.

The equation tilts too far against workers, said Samuel Bagenstos, a University of Michigan Law School professor. "When ... employers can charge you a couple thousand dollars more for refusing to give private medical information, [that] doesn't sound very voluntary to me."

Many employers say the proposed rule doesn't clear up the conflicts between the health law and the ADA. In addition, it restricts their ability to offer rewards, which are needed to "engage employees and their families to be aware of their ... lifestyle risks," said Steve Wojcik, vice president of public policy for the National Business Group on Health.

The EEOC hasn't set a timetable for issuing a final rule.

Under the proposal, wellness programs would be considered voluntary so long as the employer rewards or penalizes an employee no more than 30 percent of the cost of health insurance for a single worker. Since the average cost for such coverage is $6,025 a year, the 30 percent limit would be about $1,800.

Employers can't fire workers for declining to participate, nor can they deny them coverage, the proposal says. They also must give workers a notice explaining what medical information will be obtained by the wellness administrator — often a private contractor — and how that might be used.

Some employers say the rule could force them to cut the size of wellness programs' financial incentives or penalties, particularly for families and smokers. Such limits could mean "advancements in workplace health improvement may come to an end," wrote the Northeast Business Group on Health, a coalition of large employers, insurers and benefit consultants.

Consumer groups are also unhappy, saying the proposal strips workers of important protections against health or disability-related discrimination by loosening earlier government definitions of what constitutes a voluntary program.

"It walks back people's rights," said Jennifer Mathis, director of programs for the nonprofit Bazelon Center for Mental Health Law, a legal advocacy organization for people with mental disabilities.

The health law permits employers to offer incentives or penalties of up to 30 percent of the cost of a health insurance plan — up from 20 percent under a previous regulation — if they set specific health goals for workers, such as quitting smoking or achieving certain results on medical tests. Most employers' incentives are still well below those levels.

Still, how does that square with the ADA's restrictions on employers asking for personal medical information? That's where it gets complicated. The EEOC long defined voluntary wellness programs under the ADA as those where "an employer neither requires participation, nor penalizes employees who do not participate."

But what constitutes a penalty? Prior to the proposed rule, employers who tried to charge workers the full cost of their insurance, or who barred them from coverage for refusing to participate, could run into trouble, said Sarah Millar, a partner at law firm Drinker Biddle in Chicago.

"What was not clear was at what point between zero and 100 percent [of the cost of employee health coverage], does a program not become voluntary?" she said. "Now, as long as it's below 30 percent and meets certain disclosure requirements, then a program is still considered voluntary."

Many employers also asked the administration to allow them to impose penalties of up to 50 percent of insurance costs for tobacco users, which the federal health law allows.

Additionally, employers want to be able to charge workers 30 percent of the cost of more expensive family coverage, if the family is also eligible to participate in the wellness program. That could dramatically increase the dollar amount of the financial incentive or penalty.

But some consumer advocates say the proposed level of financial incentives or penalties is already too punitive.

"Medical questions that an employee may only decline to answer if he or she agrees to pay thousands of dollars more for health insurance can hardly be called 'voluntary'," the Bazelon center wrote. The group wants the government to prohibit penalties for those who decline to answer such questions.

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