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Business Roundtable Bludgeons EEOC into Allowing Employers to Require Genetic Information

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In a deep dark recess of today’s Federal Register, large corporations just quietly received permission to “play doctor” with their employees. They can now impose even more draconian and counterproductive wellness schemes on their workers than they already do. Their hope is to claw back a big chunk of the insurance premiums paid on behalf of employees who refuse to submit to these programs, or who can’t lose weight.

A Bit of Background on Wellness

The Affordable Care Act (ACA) allowed employers to force employees to submit to wellness under threat of fines. Specifically, the ACA’s “Safeway Amendment” — named after the supermarket chain whose wellness program was highlighted as a shining example of how corporations could help employees become healthier — encouraged corporations to tie 30% to 50% of the total health insurance premium to employee health behaviors and outcomes. (As was revealed while ACA was being debated, Safeway didn’t have a wellness program. The fictional Safeway success was a smokescreen for corporate lobbyists to shoehorn this withhold into the ACA.)

Once this 30% to 50% windfall became apparent, many corporations figured out what this vendor (Bravo Wellness) advertised: there is much more money to be made in clawing back large sums of money from employees who refuse to submit to these programs than in improving the health of employees enough to allegedly reduce spending many years from now. “Allegedly” because–unlike simply collecting fines or withholding incentive payments–improving employee health turns out to be remarkably hard and ridiculously expensive to do, so hard and expensive that:

Most importantly, the complete lack of regulation has allowed the wellness industry and health plans to expose employees to significant potential harms, in order to maximize revenues.

The Federal Government Green-Lights “Wellness-or-Else” Programs

There are no regulations, licensure requirements or oversight boards constraining the conduct of wellness vendors, and only one agency — the Equal Employment Opportunity Commission (EEOC) — providing any employee recourse. The Business Roundtable has taken on the latter at every opportunity. First they threatened President Obama that it would withdraw its support for ACA unless he declawed the EEOC. Then they held sham Senate hearings entitled: “Employer Wellness Programs: Better Health Outcomes and Lower Costs.” Finally, they threatened to push the“Preserving Employee Wellness Programs Act” to eviscerate the EEOC’s protections legislatively.

But it turns out the legislative end-around wasn’t necessary. The EEOC has now caved in. These programs are defined as “voluntary,” and yet as of now, employees can be forced to hand over genetic and family history information, or pay penalties. So, as in 1984, where “war” means “peace,” employees can be required to voluntarily hand over this information.

Let’s be clear. This isn’t about employee wellness programs, which don’t work. It’s all about the penalties. Genetic information is worthless in the prevention of heart disease and diabetes, as Aetna just showed in a failed experiment on its own employees.

Knowing family history does have some predictive value, but it is unclear how employees are going to benefit from employers collecting it. Self-insured employers could either fire the employee or do nothing. Neither is useful for the employee. If the employer is fully insured, this information is akin to a “pre-existing condition” in the old days. The employer’s premiums will increase as long as employees with bad family histories remain on their payroll.

The Good News, Part 1: Corporations Wising Up

The Business Roundtable, and their friends at the US Chamber of Commerce, might want to connect their computers to the internet. It turns out that many companies are finally realizing that compelling employees to submit to medical screens just to claw back some insurance money isn’t worth the morale hit.

Increasingly, employers are learning that what the national data shows is also true for themselves: these programs simply do not work. For example:

And the morale hit? A formerly obscure faculty member who led the successful employee revolt against the Penn State wellness program just got elected president of the Penn State Faculty Senate–largely because employees were so grateful to him for his leadership in that revolt.

The Good News, Part 2: Wellness For Employees

As a result, many companies are deciding that clawing back some insurance money isn’t worth the damage done to their workforces. They are replacing “wellness done to employees” with “wellness done for employees.” These companies are improving the built environment, upgrading their foodservice, encouraging fitness, or simply adding features to the health benefit like paternal leave or financial counseling. They might still hold a “health fair” every now and then, but their medical tests are conducted infrequently–according to actual clinical guidelines–instead of allowing vendors to screen the stuffing out of their employees to find diseases that don’t exist.

Or they are actually focusing efforts where they can make a difference, like steering employees to safer hospitals or educating employees on how to purchase healthcare services wisely. (Disclosure: my own company, Quizzify, is in the business of teaching employees how to do the latter.)

Notwithstanding this disruption and regardless of the harms it has caused, the $7-billion wellness industry has excelled in perpetuating its own existence. Industry “thought leaders” recently proposed a scheme to encourage companies to disclose how fat their employees are–and have even managed to get a few large employers to sign on to it.

The sheer audacity of that scheme and complete disregard for its consequences on overweight employees means the war on “voluntary” wellness-or-else programs is by no means over. Like every other industry threatened by reality but supported by deep-pocketed allies like the Business Roundtable, the wellness industry can rely on the government to delay the inevitable.

Consequently, it might be quite some time before the inevitable course of reality overcomes the wellness-or-else pox on the healthcare system.

 


4 Comments

  1. Dr. Jon says:

    Completely and utterly outrageous! – and this all from a “wellness” industry! – the only good news is that companes and even brokers and some vendors are beginning to smell the rat here – just a matter of time – but how many will be hurt in the meantime? – Dr. Jon

    Like

  2. Dell Dorn says:

    Keep up the good work. Just as in boxing or MMA there is rarely a knockout punch. In this case hopefully the opponent (the wellness industry) will succumb to a steady barrage of truth.

    Like

  3. Sam Lippe says:

    That’s not how you spell “Benatar” but this is nowhere near as OUTRAGEOUS as the Business Roundtable and EEOC. Hopefully corporations will have enough sense to ignore this nonsense and keep moving away from it.

    Like

    • whynobodybelievesthenumbers says:

      You’re right on both counts. I’m not sure how to get back into the place where I made that change but I will. While corporations would generally do right by their employers, there are many wellness vendors who will try to push them the other way.

      Like

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