By Julie Zuckerbrod*
In 2017, many food service and maintenance staff at Yale University received a notice about a mandatory health screening and “coaching” program. These employees and their spouses were automatically enrolled in the Yale Health Expectations Program (HEP), which required them to complete a series of health services like physical exams, blood tests, and cancer screenings.
The data collected by these health screenings was then shared with a health and disease management organization. If workers had conditions such as diabetes, high cholesterol, or hypertension, they were required to work with a health “coach” assigned to improve their health.
Workers could opt out of HEP, but only if they agreed to pay a fee of $25 per week — or $1,300 per year. Employees also faced this penalty if they stayed in the program, but did not comply with the screening or coaching protocols. One breast cancer survivor and line cook at Yale was told she had to pay $25 per week because she failed to have a mammogram, even though she’d had a double mastectomy which made a breast screening medically impossible.
Background on Workplace Wellness Programs
Workplace wellness programs like Yale’s HEP have the allure of a win-win for workers and employers. In theory, if employers can help employees stay healthy, they can also avoid serious health care costs. But in reality, workers that already face barriers to maintaining their health and obtaining health care services are more likely to suffer penalties.
Most large employers offer their workers some kind of wellness program. Some of these programs are connected to employer-sponsored health insurance and increasingly, employers are offering financial incentives to encourage workers to participate. In 2019, almost a third of large firms offering health benefits offered incentives to complete a health risk assessment, compared to 14% in 2008.
When a wellness program is part of a group health plan, these incentives often come in the form of discounts on an employee’s health benefits. But the flip side of an incentive for participating is a penalty for opting out, sometimes costing employees hundreds of dollars more per month for their employer-sponsored health insurance.
Exacerbating Disparities in Health Outcomes
In addition to requiring workers to complete a health screening, some programs — known as health-contingent wellness programs — tie incentives (or penalties) to an employee’s ability to meet a specific health goal. A health-contingent wellness program might require an employee who is overweight to achieve a lower BMI. If the worker fails to lose weight, they can be penalized with a hefty fee. While these programs are advertised as ways to encourage employees to get healthier, they can disproportionately penalize workers who face the greatest barriers to health improvement.
For example, people of color are more likely to suffer from chronic health conditions like obesity compared to whites. Additionally, due to generations of racism within the health care system, many people of color get poorer-quality health care, which can make it more difficult to improve their health and achieve certain outcomes.
Workers with low incomes may face additional barriers to achieving targeted health outcomes. For example, many low-wage workers also lack reliable access to a sufficient quantity of affordable, nutritious food, which can make it difficult to maintain a healthy weight. Furthermore, higher crime and environmental toxins in low-income neighborhoods can make it difficult or unsafe for some workers to exercise outdoors.
Additionally, some programs require participation in activities like exercise or nutrition classes. These requirements can be difficult or impossible for employees who lack access to transportation, have multiple jobs, or need child care.
For workers who face these systemic and environmental barriers to health, enrolling in a health-contingent wellness program can look less like a benefit and more like a penalty.
Conflicting Federal Laws
The Affordable Care Act allows employers to offer incentives valued up to 30% of the cost of an employee’s health insurance coverage in exchange for participation in a health-contingent wellness program. But with the average cost of self-only coverage now over $7,400, that incentive limit can translate to over $2,000 annually. This means some workers are put to the choice of enrolling in a wellness program or facing a significant financial penalty. Such a tradeoff can render these programs coercive in violation of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), which require that employee participation in a wellness program that includes medical questions and exams be “voluntary.”
The coercive nature of wellness programs with high-value incentives can also compound inequalities. For example, low-income workers might feel pressure to avoid the penalty for non-participation. At the same time, these workers often face disproportionately high barriers to improving their health. Thus, those most at risk of being coerced into participation are also more likely to be penalized for failing to meet a health goal.
An Opportunity for Equity-Focused Regulations
In January 2021, the Equal Employment Opportunity Commission (the agency tasked with enforcing the ADA and GINA) issued a pair of proposed rules designed to ensure workplace wellness programs were compliant with the ADA and GINA. Under the proposed rules, employers would only be allowed to offer a minimal reward, such as a water bottle, in exchange for a worker’s participation in a wellness program offered outside of a group health plan. But the proposed rules would continue to allow relatively high incentive limits for health-contingent programs that are part of a group health plan. If the proposed rule went into effect, it would mean that employees who get their health insurance through work could face large surcharges for opting out of a wellness program or failing to reach a specific health outcome.
When President Biden was inaugurated on January 20, 2021, he required the EEOC to withdraw these proposed rules. The Biden Administration now has a clean slate to issue new workplace wellness program regulations. Such regulations should ensure that no one is coerced into participating in a program that is likely to penalize them.
For example, all wellness programs, including health-contingent programs, should be prohibited from offering financial or in-kind incentives of significant value. This will reduce the pressure workers may feel to participate, even when they would rather not.
Additionally, any wellness program that requires participants to reach a certain health goal should also enable workers to reach those goals. For example, if a worker is encouraged to lose weight, the program should provide the supports the worker may need, such as transportation, child care, nutrition classes, and help accessing and purchasing nutritious foods.
Workplace wellness programs should support workers in their own health and wellness goals, not penalize them for missing prescribed targets. That means giving workers a meaningful choice to participate and providing them the resources they need to improve and maintain their health.
*Julie Zuckerbrod is a third year law student at Georgetown University Law Center. She is working with the Georgetown University Center on Health Insurance Reforms as part of a fieldwork practicum.