It may be an offer employees simply can no longer refuse.þþþþþWorkers increasingly are being told by their companies to undergo health screenings and enroll in wellness programs, as a way to curb insurance costs. Many employees now face stiff financial penalties — often in the form of higher premiums — if they do not have their cholesterol checked or join programs to lose weight or better manage diabetes.þþAnd a ruling late last month by a federal judge in Wisconsin is likely to further embolden companies to prod workers to join these programs, despite growing concerns over employee privacy and health management.þþThe court decision is the latest setback for the federal Equal Employment Opportunity Commission, which in the last few years has pursued legal action against programs it says violated federal antidiscrimination laws.þþThe agency has argued, unsuccessfully in some cases, that employers have wellness programs that violate laws prohibiting them from demanding medical information from workers. In addition to bringing several lawsuits, the agency has also issued proposed regulations that would forbid companies to make health screenings a condition of insurance coverage. The standoff will need to be settled by the courts unless the agency revises its rules.þþ“The Equal Employment Opportunity Commission does not like wellness plans, period,” said Eric S. Dreiband, a former general counsel for the agency who is now a partner at Jones Day in Washington, D.C.þþWhile most large employers offer wellness programs, companies and workers alike may find the rules difficult to navigate. The Affordable Care Act allows employers to impose hefty penalties on individuals who do not participate. Nearly half of the large employers offering screenings and wellness programs use some sort of financial incentive to persuade employees to comply, according to a recent analysis by the Kaiser Family Foundation.þþBut the E.E.O.C. seems to have adopted a different standard, and its proposed regulations do not mesh neatly with the health law. The agency appears to be facing pressure from the White House and Republicans to make sure it does not derail corporate efforts to rein in health care costs.þþþþþþþþIn the Wisconsin case, the company, Flambeau Inc., went beyond a common incentive that can save participating employees several hundred dollars. Flambeau, a maker of plastic products like tool boxes and hunting decoys, required employees to fill out a health questionnaire and undergo biometric testing, which checks weight, blood pressure and the like, to qualify for its health plan.þþOne worker, Dale Arnold, missed the deadline for a screening and lost his insurance coverage after the company refused to pay its share of the cost, according to the opinion. Although Mr. Arnold was later able to enroll after getting tested, the E.E.O.C. brought a lawsuit in September 2014.þþIn the ruling against the E.E.O.C., the judge in the Federal District Court for the Western District of Wisconsin cited a 2011 decision in Florida, later affirmed by a federal appeals court, that said employers could screen employees for health risks when offering health insurance.þþþþþþþBoth courts ruled that companies administering health plans could be exempt from provisions of the Americans With Disabilities Act that prohibit employers from forcing workers to provide health information. The courts pointed to a safe harbor provision within the act as a reason to allow some employers to demand the data.þþ“It’s an embarrassing and disappointing loss for the Equal Employment Opportunity Commission,” Mr. Dreiband said of the December decision.þþFlambeau has discontinued its screening of employees. But the company defended its actions as “fundamental” to offering insurance. “We were not looking to probe into people’s personal lives” or use the information to discriminate against anyone, said Jason Sauey, Flambeau’s chief executive.þþ“We thought what we were doing was right,” he said.þþWhile the E.E.O.C., which declined to comment, is widely expected to appeal, some employer groups said the case validated companies’ efforts.þþ“It’s quite significant,” said Gretchen K. Young, a senior vice president at the Erisa Industry Committee, a trade group that represents large employers. “The safe harbor is now a mainstream interpretation,” she said.þþStephen A. DiTullio, an outside lawyer for Flambeau, said that while the A.D.A. forbids companies to discriminate against workers, Flambeau never had access to an individual’s data and it used the information only to manage its risk. The safe harbor allows companies to identify how many workers have high blood pressure, for example, and enact programs to help.þþ“It’s a really positive development for employers because now there’s a little bit of a road map to follow,” said Mr. DiTullio, who is with the firm DeWitt Ross & Stevens in Madison, Wis.þþEven lawyers who contend that the courts erred in these rulings concede that the decisions signal a willingness to give companies significant leeway. “It does indicate something of a trend,” said Timothy S. Jost, a health law professor at Washington and Lee University. But, he added, “We’re a long way from the end of this story.”þþIn another case, the E.E.O.C. tried to get an injunction to stop Honeywell International from fining its workers up to $4,000 for not agreeing to biometric testing, according to legal filings. The federal court in Minnesota denied the motion for an injunction, but it did not weigh in on the merits of the case. Honeywell denies that it acted inappropriately.þþA fourth case involves another Wisconsin-based employer, Orion Energy Systems. The E.E.O.C. contends that the company stopped contributing to an employee’s insurance coverage when she refused to submit to a screening, and later fired her. The case is still pending.þþUnder the Affordable Care Act, businesses can use financial incentives of up to 30 percent of the yearly cost of coverage, which could easily amount to several thousand dollars. While few employers have incentives of that size, about one in 20 large employers offering screenings has incentives of at least $1,000, according to the Kaiser survey. A smaller fraction require screening before an employee can enroll in coverage. Over all, the amounts for not participating have been increasing, said Karen Pollitz, a senior fellow at Kaiser.þþþþþþþþþThe E.E.O.C.’s challenges have given employers pause as they try to square the Americans With Disabilities Act with the Affordable Care Act and other laws. “It’s becoming more and more difficult even for the lawyers to keep up with the patchwork regulatory approach to these rules,” said Edward Fensholt, a lawyer who heads compliance services for Lockton Companies, an insurance broker based in Kansas City, Mo.þþMr. Fensholt emphasized employers’ need for the information to better control their costs. “Health benefits are a tremendous value to employees, and they are also a tremendous expense to employers,” he said.þþWhile the E.E.O.C. is expected to issue its final regulations as soon as this spring, the agency was criticized by both Republicans and Democrats in a Senate hearing held last year. Its commissioners are presidential appointees, and the agency could decide to delay new rules until the next administration rather than try to sort out the issue.þþSome consultants argue that employers have already begun to cool toward putting undue pressure on workers to participate in wellness programs. “The E.E.O.C. has singled out cases that are outliers,” said Dr. Gordon K. Norman, a consultant with Willis Towers Watson, which advises employers. He says companies are already being careful about how much they penalize someone for not participating. “Frankly, they realize there is a tipping point,” he said, at which a company’s practices make workers resentful or less engaged.þþBut employers want to use high penalties as way of persuading the holdouts in their work force to participate, said Jennifer Mathis, a former E.E.O.C lawyer who is now with the Bazelon Center for Mental Health Law.þþIf the higher courts go along with the idea that companies can demand this information as a condition of enrolling in their health plans, the debate over what is voluntary will be moot, because workers will not be able to afford to say no. “The whole conversation is over,” she said. “You can do anything you want.”þ
Source: NY Times
