Keeping “Wellness” from Turning into Discrimination

by | May 8, 2013 | ACA

Today, I had the honor of testifying before the U.S. Equal Employment Opportunity Commission (EEOC) on a topic of critical importance to our nation’s workers: employer wellness programs. These programs can offer women and families meaningful avenues for improving and maintaining their health. And, as part of the Affordable Care Act, employers will soon have new incentives to establish them. But they can also open doors to discrimination.

Employer wellness programs are aimed at promoting healthier lifestyles and improving health outcomes by encouraging health-related activities like signing up for gym memberships, taking health education classes, getting health risk assessments and more. They come in two basic forms: “participatory” wellness programs, which are available to employees regardless of a person’s health; and “health-contingent” wellness programs, which are tied to certain health benchmarks or targets. It’s the latter that cause concern.

There is no one-size-fits-all approach to individual health, wellness and life circumstances, and employer wellness programs must reflect that. That’s why they should be voluntary, carefully designed, and not tied to health indicators. Groups like women, older adults and racial minorities experience significant health disparities. Tying wellness program penalties to their health situations can cause them disproportionate harm and, as I argued today, violate nondiscrimination laws.

Health-contingent wellness programs that increase health care costs for certain workers aren’t about wellness; they are about shifting costs to working people, especially those with health problems. And there’s no scientific evidence that shows they do anything to improve health outcomes. That’s why the National Partnership is recommending that the EEOC:

  1. Issue specific and thorough guidance to employers to inform them of best practices in designing and implementing wellness programs, as well as potential legal implications;
  2. Engage in outreach and education to employers to help ensure compliance with nondiscrimination laws;
  3. Enforce the law by challenging employer wellness programs that are discriminatory; and
  4. Work with other agencies — including the Departments of Treasury, Labor, Justice and Health and Human Services, and the Office of Personnel Management — to provide the assistance employers need to prevent discrimination in the implementation and regulation of employer wellness programs.

At the National Partnership, we know that access to affordable, quality health care is essential for women and families. We also know the importance of ensuring people can work free from discrimination. Today, I made clear that, with proper oversight, wellness programs can do both: They can help women and families achieve meaningful improvements in their health, without running afoul of our nation’s civil rights laws. We will do all we can to ensure this happens.

You can read my full written testimony here.