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AARP files suit against EEOC for wellness program overreach

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Along with the overwhelming preponderance of the decidedly un-rigged media establishment, the AARP has emerged as the unlikely vox populi in the battle against “pry, poke and prod” programs and their ethos of “overscreening today, overscreening tomorrow, overscreening forever.”

The reason for the AARP’s interest is that often it is the older employees who have trouble losing the weight or keeping their blood pressure down — and hence get disproportionately penalized. Indeed, those two metrics do rise with age, a factoid that the wellness industry penalty/incentive schedule rarely takes into account.  (Along with smoking and family history, age is the #1 risk factor for heart disease and other related medical events. What do these risk factors have in common? Wellness programs don’t change the first, can’t inquire about the second, and ignore the third. And people wonder why these programs don’t work.)

For instance, you don’t see age mentioned at all in the shocking anti-fat-employee jihad recently proposed by the American Journal of Health Promotion.  Thank goodness that trade magazine has a low “impact factor,” and no one will notice or care about this rant. Otherwise, older employees would be in a lot of trouble. Further, the Johnson & Johnson Fat Tax proposal, which fortunately appears to have been stillborn, would have made employers less likely to keep older employees in the workforce as well, for similar reasons.

The AARP just yesterday filed suit against the Equal Employment Opportunity Commission (EEOC). The suit addresses both:

  1. Whether workers’ medical information is at risk; and
  2. Whether these programs are truly voluntary.

The former is less important, in our opinion. While Staywell managed to get itself hacked, most information that employees submit is fabricated (as we learned from Wellsteps’ Boise program, where almost no one admitted to smoking or drinking) and fairly useless to hackers. Or, for that matter, to employees or anyone else.  So ironically, the best defense for wellness proponents against the first charge is that this isn’t medical information. It’s garbage, so who cares whether it’s at risk?  (I’m being a bit facetious here.)


However, the second is clearly an issue. The Business Roundtable (BRT) has strongly pressured both the legislative and executive branches of government regarding wellness in general, and the definition of “voluntary” participation in particular.

And if you don’t think the BRT owns the former branch, consider the title of the Senate Committee “hearing” on wellness. It was not: “Do Wellness Programs Work?” Instead it was titled: “Employer Wellness Programs: Better Health Outcomes and Lower Costs.”

Title optics aside, obviously the BRT and their cronies at the US Chamber of Commerce have no interest in whether these programs actually work. (If they did, they’d have abandoned them by now, or else claimed their $1-million reward for showing they’ve worked, a reward which we have specifically offered to them.)  What they are most decidedly interested in, though, is giving their member corporations the right to collectively withhold billions from employees who refuse to let their employers “play doctor.”

In classic doublespeak in order to avoid EEOC sanctions, the BRT had the feds redefine the word “forced” to mean “voluntary,” for the purposes of wellness. Non-participants (or in the jihad described above, people who don’t lose the weight) can be fined quite literally thousands of dollars.  How is this voluntary?

The some degree, the EEOC’s hands are tied by Congress and the White House, because they can only write the regulations and interpret the laws. They don’t make laws.  And there is no law that protects employees from harmful programs like Wellsteps.  So the AARP can only work around the edges of wellness, with challenges to privacy and voluntariness, rather than address the elephant in the room, which is that many wellness programs flout guidelines and harm employees…and there’s not a thing anyone can do about it.


Until then, we wish AARP the best. Perhaps for the definition of “voluntary,” their attorney should cite the Urban Dictionary:

voluntary

 


2 Comments

  1. temerick479 says:

    As you wrote the biggest risks are smoking, genetics, and aging. Exactly. Wellness will be successful when it can reverse aging. I’d suggest wellness Ignorati spend the day in a pre-surgery waiting room if they are in doubt about the aging part.

    Like

  2. Bill Springer, CPA, MBA, FAHM says:

    The observations about how the age risk factor is ignored when penalizing non-participants are quite evident. Perhaps the EEOC should require age-adjusted data submissions from employers to disprove the BRT’s hypothesis that this isn’t discriminatory against older employees.

    Liked by 1 person

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