A list of the medical field’s worst ideas would include annual checkups, chest x-rays, and PSA tests. All are panned in the literature and/or by the United States Preventive Services Task Force (USPSTF), because the potential harms/hazards exceed the benefits. Alfred Ortiz, an employee of the San Antonio Fire Department, had the unbridled temerity to refuse to submit to those items, plus a bunch of other unspecified screens involving various and sundry other precious bodily fluids no doubt also panned by the USPSTF.
If your personal physician wanted to do these things to you (and most wouldn’t), you could refuse. Not so if your employer insists. A federal court has just ruled that — even if the employee wellness program is, to use a technical legal term, really stupid — you can be fired if you don’t submit to it.
And this San Antonio Fire Department program was indeed one of the dumbest. It included:
The justification was that these tests, designed for “early detection of serious medical conditions,” were needed to see if Mr. Ortiz could “perform his position’s essential duties.” However, my google search revealed no cases in which a house burned down because a fireman had an enlarged prostate.
If fire departments seriously want to test skills related to “essential duties”, why not a job-specific triathlon? They could make employees (1) run up 5 flights of stairs in a firesuit carrying a heavy hose; (2) retrieve a cat from a tree; and (3) attend a career day at a junior high school. But don’t endanger their health to please a wellness consultant or vendor.
Partly I suspect Mr. Ortiz’ lawyer didn’t cite or even suspect the hazards of overscreening and overdiagnosis. People who make their livings in other fields tend to assume that people who run wellness programs know the first thing about wellness, notwithstanding our 80 posts to the contrary. A plaintiff attorney overlooking the hazards of overdoctoring ends up in a tough debate on privacy-vs.-alleged job requirements, instead of a much more winnable debate on the employer’s right to gratuitously harm the employee by “playing doctor.”
Mr. Ortiz caved, and went back to work, but the ruling was quite clear that he could have been fired if he hadn’t caved.
Nonetheless, this case is now precedent, at least in the 5th Circuit. The implications? There are no regulations, licenses, or oversight board preventing wellness vendors and employers from harming employees (at taxpayer expense this time), and now there is no case law either.