Wellness Programs Collide with Title I Right to Non-Disclosure
A standard best practice of medium to large companies is the assessment of risk in advance of an event. A basic precept of the Americans with Disabilities Act, and specifically Title I, is an individual’s right to not disclose one’s disability. The legality of using a whole-company health risk assessment process as a tool to collect and aggregate individual health data that may include markers of disability has gone through an important review with the December 31, 2015 publication of EEOC v. Flambeau, Inc., (No. 14-cv-638-bbc).
I strongly urge human resource professionals, physicians, and work evaluators to read this and other blogs to be sure you are not tempted to use this case to relax your standards on COLLECTING and USING disability information in your hiring and retention process.
This case is about “real” wellness programs created with the intent of truly fostering a whole-company move to better health. Forecasting future exposure based on analysis of data is a byproduct of the program. And the entire concept is based on the “safe harbor” allowed employers under the ADA provision for bona fide benefit plans. This provision allowed Flambeau, Inc., a Wisconsin plastics manufacturer, to condition participation in its self-funded group health plan on a requirement that employees complete a health risk assessment (HRA) and undergo “biometric screening.” Failure to undergo the HRA or the biometric testing excluded the individual from company-subsidized health insurance.
Quoting from the court’s Opinion and Order in EEOC v. Flambeau, Inc., (No. 14-cv-638-bbc):
In October 2010, defendant established a “wellness program” for those employees that wanted to enroll in defendant’s health insurance plan for the 2011 benefit year. The wellness program had two components—a health risk assessment and a biometric test. The health risk assessment required each participant to complete a questionnaire about his or her medical history, diet, mental and social health and job satisfaction. The biometric test was similar to a routine physical examination: among other things, it involved height and weight measurements, a blood pressure test and a blood draw.
The information gathered through the wellness program was used to identify the health risks and medical conditions common among the plan’s enrollees. Except for information regarding tobacco use, the health risks and medical conditions identified were reported to defendant in the aggregate, so that it did not know any participant’s individual results. Defendant used this informationto estimate the cost of providing insurance, set participants’ premiums, evaluate the need for stop-loss insurance, adjust the co-pays for preventive exams and adjust the co-pays for certain prescription drugs. Defendant also sponsored weight loss competitions, modified vending machine options and made other “organization-wide changes” aimed at promoting health in light of the fact that a high percentage of defendant’s employees appeared to suffer from nutritional deficiencies and weight management problems.
For the 2011 benefit year, which was the first year the wellness program was in place, defendant promoted the program by giving employees a $600 credit if they participated and completed both the health risk assessment and the biometric test. For the 2012 and 2013 benefit years, however, defendant eliminated the $600 credit and instead adopted a policy of offering health insurance only to those employees that completed the wellness program. Participating in the wellness program was not a condition of continued employment, but defendant offered company-subsidized health insurance under its benefit plan to wellness program participants exclusively.
My lay reading of the code § 12112(d)(4)(A and B) suggests that the idea of collecting personal health data that might include disability related metrics runs right into other elements of the Americans with Disabilities Act “medical examinations”.
(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
(B) Acceptable examinations and inquiries
A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
The court found that the wellness program requirement was intended to assist Flambeau with “underwriting, classifying or administering risks associated with the insurance plan,” because the company’s consultants used the data gathered through the wellness program (which was collected in the aggregate) to classify plan participants’ health risks and calculate the company’s projected insurance costs for the benefit year. The court stated that it was irrelevant that the company could have potentially designed and administered the plan without requiring participants to complete the wellness program.
Federal District Court Judge Barbara B. Crabb rejected the EEOC’s challenge and upheld the company’s wellness program. She ruled that the assessment and testing fell within the ADA safe harbor, which provides an exemption for activities related to the administration of a bona fide benefit plan.
The path this case has taken, the length and detail of the arguments, and the precedent nature of the opinion and order lead one to think that we haven’t seen the last of this subject. As I said above, those of us who are placed in the position of collecting medical data from employees must be very careful to not relax our best practices requiring job relatedness, business necessity, and employee safety to be the leading reasons for collecting and using this type of data.
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