As previously indicated, this is a longer version of the comments submitted to the EEOC.
Many ‘wellness’ programs include a component addressing employee’s body weight. Many employees who are overweight or obese already suffer from the ‘wage penalty’ whereby they receive lower compensation than their non-obese peers. In this regulation, the EEOC eleminates a crucial protection for these Americans, penalizes them an additional 30% of the cost of health insurance premium (including the share they pay) and provides them with weight loss programs which are not effective and unlikely to ever be effective. These programs are highly intrusive. The privacy of the most sensitive personal records is an illusion. The EEOC’s notice provisions are terribly flawed, as well.
The proposed regulations by the EEOC represent an Orwellian distortion of the English language in a transparent and crass political deal by the Obama Administration to buy the political support of Corporate America at the expense of millions of poor and middle class workers for decades into the future. See Reuters, Begley S, Exclusive: U.S. CEOs threaten to pull tacit Obamacare support over ‘wellness’ spat, Nov. 29, 20144). While the benefits of corporate wellness programs have yet to be established, the penalty provisions are in effect immediately and permanently. This regulation, allowing employers to claw-back funds from employees provides insurance for employers at great and burdensome expense to millions of employees.
A majority of US large employers have instituted ‘wellness programs’ which require employees to answer detailed questions about their own and family medical histories and to give blood samples and submit to examinations for cholesterol, glucose levels, blood pressure and body weight. Penalties for non-compliance can reach $4,000 a year for workers who elect not to participate.
According to one study, “the most common change employers will make to healthcare plans in 2015 is adding wellness rewards or penalties (26.3%), followed by requiring spouses to get coverage through their own employer (7.9%), instituting spousal surcharge (6.7%), and create tiered networks (3.6%). “
While ‘wellness’ programs are promoted as a way for empathic employers to improve health and wellbeing of employees, increase productivity, reduce risk of chronic diseases, improve control of chronic conditions, in fact they are massive cost-shifting techniques to provide insurance for employers against future increases in health insurance costs. The world’s best medical experts cannot change the course of most chronic diseases. Why would we think that the folks in HR can do better than these experts? (See the story about the largest and most comprehensive clinical trial of behavioral weight loss approach and why it was stopped…for futility, here.)
Obesity Disability and Discrimination
Many persons with disabilities are overweight or obese. Many psychotropic drugs cause weight gain and severe metabolic disturbances, such as abdominal weight accumulation, abnormal lipid and glucose levels, insulin resistance and overt type 2 diabetes. Almost all antipsychotics cause weight gain. Anxiety, stress and depression are more common in patients with obesity and mental disturbance. Obesity is recognized as a disease by the American Medical Association, the American Academy of Clinical Endocrinologists, the Centers for Medicare and Medicaid, the Social Security Administration, and the Internal Revenue Service, inter alia.
Weight gain is associated with the following medications amitriptyline, mirtazapine, olanzapine, quetiapine, risperidone, gabapentin, tolbutamide, pioglitazone, glimepiride, gliclazide, glyburide, glipizide, sitagliptin and nateglinde. Weight gain ran from 0.3kg for nateglinide to 2.8kg for tolbutamide. Domecq JP, Prutsky G, Leppin A, Drugs Commonly Associated with Weight Change: A Systematic Review and Meta-analysis, J Clin Endocrinol Metab 2015 Feb; 100(2):363-70)
Insulin and other oral anti-diabetic medications also cause weight gain. Jeon WS, Park CY, Antiobesity pharmacotherapy for patients with type 2 diabetes: focus on long-term management, Endocrinol Metab 2014 Dec 29;29(4):410-7, here.)
Many persons with obesity, especially severe or Class III obesity, are disabled. Ferraro et al found in a 20 year study of adults age 25 to 77 that obesity increased the likelihood of a self-reported upper and lower body functional limitation. (Ferraro KF, Ya-Ping Su, Gretebeck RJ, Body Mass Index and Disability in Adulthood: A 20-Year Panel Study, Amer J Public Health 92(5):834-40, here) See also, Alley DE, Chang VW The Changing Relationship of Obesity and Disability, JAMA 2007 298(17):2020-27, here, and Hergenroeder AL, Brach JS et al, The Influence of Body Mass Index on Self-Report and Performance-Based Measures of Physical Function in Adult Women, Cardiopulmonary Physical Therapy Journal 22(3):11-20, here)
Up to 70% of our weight is determined by hundreds of genes. Body weight regulation is greatly genetically controlled. One recent study showed that weight loss varies according to whether one has inherited the “thrifty gene” or the “spendthrift” gene phenotype. (Reinhardt, M, Thearle MS, Ibrahim M, et al. A Human Thrifty Phenotype Associated with Less Weight Loss During Caloric Restriction, Diabetes published on-line May 11, 2015)
Pre- and post-natal exposure to over-rich nutrient environment has been demonstrated to increase obesity and other metabolic disorders in offspring. (Li L, Xue J, Ding J, Over-nutrient environment during both prenatal and post natal development increases severity of islet injury, hyperglycemia, and metabolic disorders in the offspring, J Physiol Biochem 2015, June 6, epub ahead of print.)
Employer ‘wellness’ programs which address control of body weight are largely unaware of reasons why weight loss is so hard to achieve and why weight regain is so common. (This is probably due to the lack of formal and uniform educational and training programs for the people running such programs.) The biological facts are that adaptions in the human body are designed to prevent starvation and these undermine long-term weight loss. These adaptions include developing adipocyte proliferation (creating greater fat storage capacity) and habituation to dopamine signaling stimulation in the brain. According to a recent Comment in The Lancet, “Importantly, these latter adaptions are not typically observed in individuals who are overweight but occur only after obesity has been maintained for some time. Thus, improved lifestyle choices might be sufficient for lasting reductions in bodyweight prior to sustained obesity. Once obesity is established, however, bodyweight seems to become biologically stamped in and defended…Evidence suggests that these biological adaptions often persist indefinitely, even when a person re-attains a health BMI (Body Mass Index) via a behaviorally induced weight loss.” (Ochner, CN, Tsai AG, Kushner RF, Treating obesity seriously: when recommendations for lifestyle change confront biological adaptions. The Lancet, April 2015 Ap;3(4):232-4)
One of most powerful adaptions is called adaptive thermogenesis. This term refers to the well-documented process that, with weight loss, the body turns down its metabolism to preserve body weight. Hence, to continue to lose weight, one must progressively eat less and less. If one person were to lose 50 pounds and weight 150 lbs, their body is not similar, in terms of caloric demand, to a 150 lbs person who was never obese. The person who lost weight would have to consume roughly 30% fewer calories per day than the person at the same weight who never lost weight. (See Downey Obesity Report, Jan 17, 2014) Adaptive thermogenesis produces a point at which no further weight loss appears possible. (See also, TremblayA, Royer NN, Chaput JP, Doucet E, Adaptive Thermogensis can make a difference in the ability of obese individuals to lose body weight. Int J Obes 2013 Jun;37(6):759-64, here.) Yet no wellness program provider of weight management services appears to offer anything to employees after a period of initial weight loss.
Definition of “Voluntary”
The proposed EEOC regulation provide that “employee health programs” that include disability-related inquiries or medical examinations must be voluntary and must have a reasonable chance of improving the health of, or preventing disease, in participating employees in order not to violate provisions of the Americans with Disabilities Act generally banning such inquiries and examinations. Proposed rules provide that, for a program to be “voluntary”, the employer may not require employee participation and may not deny coverage as a result of non-participation.
However, the EEOC, in a twist of the English language that would make Orwell swoon, says a program is “voluntary” if the penalty for not participating is no more that 30% of the cost of single employee health care insurance cost, including the share already paid by the employee. This provision can run, today, around $2,000 on average. Of course, many health plans would have much higher premiums.
Another Reuters article, (Begley, S. Obama Administration to remove hurdles to ‘wellness’ penalties, April 16, 2015) quotes a business lawyer as stating that wellness programs with hefty penalties are voluntary “because employees can elect to participate or pay the penalty.” Of course, this is like the robber threatening “Your money or your life!” It strains credulity to believe that the EEOC would undertake such a distortion of plain meaning. Black’s Law Dictionary defines “voluntary” as “not impelled by outside influence” and “without valuable consideration”. Merriam Webster Dictionary “unconstrained by interference” and “without valuable consideration.” It is commonly used to mean an act undertaken by one’s free will. In law, for waiving of Miranda warnings or making a confession, the acts must be truly voluntary and not subject to some coercion, such as the EEOC support here.