EEOC Comments on Employer Wellness Programs

June 23rd, 2015 by MorganDowney Leave a reply »

Below are comments I filed last week with the EEOC concerning their employer wellness program proposed regulations. Because of space limitations, I had to shorten my original draft. However, I will be posting sections of the long version in the near future.


These comments are primarily addressed to employer health-contingent, or outcomes based, wellness programs which include weight management programs.

In this regulation, the Equal Employment Opportunity Commission (hereinafter “EEOC”) eliminates 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 ineffective. These programs are highly intrusive. The privacy of the most sensitive personal records is an illusion. The EEOC’s notice provisions are terribly flawed.

The proposed regulations 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). This regulation, allowing employers to claw-back compensation from employees. It provides employers with protection against future health premium increases at a great and burdensome expense to millions of employees.

Successful, long-term weight loss occurs in only about 10% of persons who voluntarily join the best and most rigorous weight loss programs for motivated consumers. There is no data, to the best of my knowledge, regarding weight loss in mandatory health outcome programs. A RAND study found weight loss in voluntary ‘wellness’ programs at about an insignificant 1 kg a year. (Downeyobesityreport, June 13, 2013)

The EEOC, in a perversion 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, and the amount will only increase over time.

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”. Merriam Webster Dictionary defines it as “unconstrained by interference” and “without valuable consideration.” It is commonly used to mean an act undertaken by one’s free will. In law, waiving Miranda warnings or the making a confession, must be truly voluntary and not subject to the type of coercion, such as the EEOC here supports.

The proposed 30% penalty is a major penalty, comparable to that of fines for commission of felonies. Federal Reserve Board published Report on the Economic Well-being of U.S. Households in 2013 in July 2014. The report found that 47% of respondents say that they either could not cover an emergency expense costing $400 or would cover it by selling something or borrowing the money. 31% of respondents report going without some form of medical care in the 12 months before the survey because they could not afford it.

The result is that many have gone without medical treatment or have not filled a prescription.

The EEOC proposed regulation omits from the notice requirement the most important elements of the joint HHS, Labor and Treasury regulations requiring access to reasonable alternatives to the wellness program, leaving the final decision in the hands of the employee’s physician. (See Downey Obesity Report, May 30, 2013.)

Regarding the privacy of health records, many vendors of employer ‘wellness’ programs are not health plans and, as such, not covered by HIPAA regulations. If the federal government, i.e. the National Security Agency, the Internal Revenue Service, the Office of Personnel Management, the Department of Health and Human Services and private companies such as Sony, Target, Premera Blue Cross, and Anthem Insurance cannot protect their data, why does the EEOC assume that small vendors of wellness programs can? The EEOC cannot credibly assume that these records will be protected against breaches. Indeed, the EEOC should assume that such data will not be kept confidential and will end up in the hands of employers.

Many programs are highly intrusive. Some companies, like Honeywell, take blood samples to test for nicotine, high cholesterol and irregular blood sugar, height and weight. CVS asked their employees whether they drink, and are sexually active. Johnson & Johnson’s wellness program asks about the employee’s mood, stress at work and home, eating and exercising habits. Some ask for the information from spouses, as well.

The proposed EEOC regulation provides no guidance on what is considered an intrusive wellness program. In addition to intrusive questions on health risk assessments, the expanded use of wearable technologies is under way. These devices track employees’ movements and behavior not only at work but off the job and in the privacy of their home.

The Affordable Care Act did not repeal or modify Americans with Disabilities Act, as noted in final wellness regulations of DOL, HHS and Treasury. In fact, Congress and sister agencies have assumed continuation of the protections afforded by the Americans With Disabilities Act.

The only value provided by ‘wellness’ programs is for corporations to shift costs to employees, which was distinctly not the intent of the ACA.

I urge the EEOC to reconsider this proposed regulation.