EEOC Comments on Employer Wellness Programs

June 23rd, 2015 No comments »

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.




EEOC punts on Employer Wellness Regulation

April 17th, 2015 No comments »

The Equal Employment Opportunity Commission (EEOC) has finally issued proposed amendments to the Americans with Disability Act (ADA) regarding employer wellness programs.

The proposed regulations are very disappointing. They re-define “voluntary” participation in a wellness program to mean being penalized 1/3 of an employee’s health insurance premium cost. The average cost of single coverage is $5,615, with employees paying $951 out of pocket. More and more of the cost is being shifted to employees. Many employees, especially white women, suffer a wage penalty because of their weight. And most employees’ health insurance plans do not cover the costs of FDA approved medicines for weight loss, bariatric surgery or intensive behavioral interventions.

In particular, the proposed regulations do not require employers to tell employees of the availability of alternative avenues to receive the reward or avoid the penalty. They do not require employers to leave the final word on alternative avenues with the employee’s physician, which is required in the DOL/HHS regulations. There is no obvious penalty if the employee’s personal health data is not adequately protected by the employer and personal health data is used to an employee’s detriment. On the other hand, one useful provision limits the penalty/reward to 30% of the premium cost of a single person. Obviously, this is lower than the cost of family coverage. Industry is sure to fight this limitation, as they want to increase the size of the penalty/reward.

Comments are open until June 19,2015.

See EEOC press release here. See proposed regulations here. For additional information, see Ted Kyle’s blog here, and Tim Jost’s blog in Health Affairs here.

In the meantime, the federal government’s Office of Personnel Management (OPM) has told federal agencies to promote workplace wellness programs.


EEOC Under Pressure for Employer Wellness Guidance

January 30th, 2015 No comments »

The Senate Health, Education, Labor and Pensions Committee (HELP) held a hearing on Jan. 29, 2016 on employer wellness programs. (See video here.) The purpose of the hearing appeared to be to put pressure on the Equal Employment Opportunity Commission (EEOC) which has recently sued several companies alleging that their wellness programs violated the Americans with Disability Act.

Ranking Democrat Patty Murray indicated that the EEOC would be issuing a proposed guidance in the near future, as reported earlier.

While billed as a debate over employer wellness programs, most of the witnesses were representatives of business groups, with the exception of one representative of the Consortium for Citizens with Disabilities, Jennifer Mathis, who gave the most detailed statement. The business representatives gave the usual pep rally cries of “these programs work” line, citing a couple of positive anecdotes and avoiding the volume of studies showing incentives and penalties do not work.


Employer Wellness Plans: Even HR doesn’t think they are effective but personal data is at risk

December 17th, 2014 No comments »

Contrary to White House Press Secretary Josh Earnest assertion that employer wellness plans, a majority of Chief Human Resource Officers surveyed by the Consero Group think otherwise. In the survey, 56% said that their wellness program had not achieved a significant reduction in health care costs; only 22% of respondents said their company had achieved a significant cost reduction. Forty-eight percent said that their wellness program was ineffective while only 40% said it was effective. The survey was among 42 Chief Human Resources Officers from Fortune 1000 companies so it cannot be said to be highly representative of this group.

A recent Wall St. Journal report states that 38% of firms now cover bariatric surgery, one-third offer weight reduction wellness program. A small number of companies are “warming” to newly approved weight-loss drugs. However, the report also notes that 71% of employers representing 600,000 workers said overcoming stigma and embarrassment represented the biggest hurdle to effective corporate weight-loss programs.

An article by Shannon Pettypiece in Bloomberg yesterday stressed the personal information asked by employers, including whether the employee (or spouse if covered by the employer paid health insurance) is sexually active, how much one drinks, etc. The article includes a number of assurances from providers of wellness programs that their data is secure. Baloney. If Sony and the National Security Agency cannot protect their secrets how good is security at your local wellness office? Health risk assessments may also inquire whether the employee owns guns, something sure to raise the hackles of the National Rifle Association.

To clear up one confusing aspect, namely, whether health information given to an employer directly or to an employer wellness program is protected by federal law. According to the website of the Department of Health and Human Services, Office of Civil Rights, health information provided to employers or as part of a wellness program is NOTprotected by the Health Insurance Portability and Accountability Act (HIPAA). Just because a program is covered by HIPAA this does not mean the information is protected. The Office of Civil Rights records numerous cases of data breaches. A Washington Post story by Jason Millman reported that over 30 million Americans have had their personal health care data breached.


How Much Weight Loss is Needed to Reduce Costs?

December 16th, 2014 No comments »

The whole premise of weight-focused employer wellness programs is that a significant amount of weight can be lost (by voluntary or involuntary participants) sufficient to reduce obesity-associated co-morbidities and, hence, health care costs, excessive sick days, etc. Unfortunately there is little to no evidence to support this premise.

Let’s just examine one part of this premise, namely, what is a sufficient weight loss to reduce costs. We have a systematic evidence review from the US Preventive Services Task Force which explored  behavioral counseling to promote a healthy lifestyle for cardiovascular disease prevention and found, “In general, intensive interventions that combined lifestyle interventions did not reduce CVD (cardio-vascular disease) events or mortality with up to 10 years of follow-up.” The researchers found “substantial statistical heterogeneity for weight outcomes” which is science-speak for ‘we can’t make heads or tails of the data’.

Now come three important studies. The first, from Tom Wadden and colleagues, looked at randomized controlled clinical trials that recruited overweight and obese subjects for primary care intervention, were provided with behavioral counseling (on diet, physical activity and behavioral therapy) for at least 3 months with at least 6 months of follow-up. They found that mean 6 month weight changes ranged from a loss of 0.3kg to 6.6kg. In the control group, mean change ranged from a gain of 0.9kg to a loss of 2.0kg. Weight loss in both groups declined with longer follow-up.

The second study from researchers in Canada looked at the assumption that a weight reduction of 5% to 10% was ‘clinically important.’ This is important because the economic arguments of employer weight wellness programs focus on achieving 5-10% weight loss. However, the employers do not realize that the great majority of health care costs are incurred by persons who have severe or morbid obesity.  What these researchers found was that the amount of weight loss needed by persons with severe obesity was markedly higher than what conventional (i.e. behavioral) therapy can deliver. In other words, rather than a weight loss of 5-10%, persons with severe obesity need a weight loss closer to 20% for clinicallly important improvements. This amount of weight loss can only be obtained using bariatric surgery. In other words, the type of interventions usually seen in employer wellness programs are insufficient to impact the higher costs associated persons with severe obesity.

The third study is from John Cawley and colleagues. They looked at the medical cost savings that can be achieved from a given amount of weight loss by people at different BMI values. They found that the savings from a given percent reduction in BMI are greater the heavier the individual with obesity and are greater for those with diabetes than those without diabetes. In other words, savings from a given BMI will be greater the higher the starting BMI. So the savings of a given amount of weight loss is going to be greater among persons with Class 3 obesity (BMI>40) and decline through Class 2 and Class 1.

The implications of these studies for employer wellness programs focusing on weight control is that they should be focused on the heaviest individuals and bariatric surgery should be provided for in the employer’s insured benefits. Wellness programs, properly structured, may provide useful, ancillary support but cannot alone reduce the higher costs associated with higher levels of obesity.


Employer Wellness Fight Heats Up

December 16th, 2014 No comments »

The Equal Employment Opportunity Commission (EEOC) has announced that they will propose, in 2015, amendments to regulations implementing the Americans with Disabilities Act (ADA) “to address the interaction between title 1 of the ADA and financial inducements and/or penalties as part of wellness programs offered through health plans” as well as other aspects of wellness programs that may be subject to the ADA’s nondiscrimination provisions. A notice of proposed rulemaking is expected to be issued in February, 2015.

The fur will certainly be flying when the proposed regulations come out. Business groups have come out heavily against a case the EEOC has already brought against three employers. One case, against Orion Energy, EEOC challenged the company’s plan requirement that employees participate in a health risk assessment and provide a blood sample. Employees who declined to participate are required to bear the entire costs of their health plan plus an additional $50 month penalty for non-participation. The EEOC has stated that voluntary participation in wellness programs is permissible under the ADA. However, employers cannot penalize employees who refuse to participate. According to the EEOC, “penalizing” means imposing significant costs such as shifting large portions of health care expenses to the employees or depriving them of significant incentives allowed to employees who do participate.

The second case was brought against Honeywell International because of penalties imposed on employees and their spouses who did not participate in biometric testing. This time violations of the Genetic Information Nondiscrimination Act were also included along with claims of violation of the ADA. Under federal regulations, an employee’s family medical history is considered to fall within the definition of “genetic information.” The request by EEOC for a temporary restraining order was denied.

Honeywell employees could be penalized up to $4,000 for not participating.

The third case, against Flambeau, Inc., claimed that the company violated the ADA by requiring a medical history as well as biometric screening. The inquiries were not job-related or consistent with business necessity, in the eyes of the EEOC.

But the business community is fighting back. The Business Roundtable has told the White House that US CEOs were considering withdrawing their support for the Affordable Care Act based on these three cases brought by the EEOC. Politico has reported that President Obama press secretary Josh Earnest offered that the EEOC suits “could be inconsistent with what we know about wellness programs…we know that they are good for both employers and employees.” Really? A recent post in Health Affairs by Al Lewis and colleagues raises a host of questions on studies showing wellness programs help employees and lower costs.  Also, see this article in the Los Angeles Times about employer wellness scams.

Luckily, the EEOC is an independent agency and is more likely to stick up for persons with disabilities than is the Obama Administration.

AOL Chief Outs Employees’ Health Information

February 11th, 2014 No comments »

Tim Armstrong

Recently, Tim Armstrong, CEO  of AOL publicly revealed sensitive health information on two of AOL’s employees. He was using the example in a justification for changing AOL’s 401(k) plan for employees. After setting the Twitter universe on fire, Armstrong apologized and reversed the change in the 401(k) plan.  AOL won’t say how it got the information but observers assume it came from the group health plan which administers AOL’s self-insured health care benefits. If so, the disclosure may violate the plan’s procedures. It is not clear that the specific employees have any recourse.

It is worth noting that the federal Health Insurance Portability and Accountability Act (HIPAA) does not cover information asked by employers and provided by employees, such as the ubiquitous Health Risk Assessments. HIPAA only covers disclosure of health information by health care personnel, according the Department of Health and Human Service’s website.


Updates on Employer Wellness Programs

February 10th, 2014 No comments »

The Hartford Business Journal has an interesting article on employer wellness programs incorporating sensor devices in their programs. For some interesting discussion of the development of passive sensor technology in nutrition and physical, see this video from David Allison’s program at the University of Alabama, Birmingham on wearable sensors for human behavior monitoring and biofeedback from 2012.

And Al Lewis and colleagues have a new book, “Surviving Workplace Wellness with Your Dignity, Finances and Major Organs Intact”, on the problems with employer wellness programs. Read this interesting review in Forbes on the three hazards of worksite wellness programs. Meanwhile the FDA has approved two wearable fitness trackers for use in clinical trials.