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Employee Wellness Programs Prompt AARP Lawsuit

By REED ABELSON
Dara Smith, a lawyer representing AARP. The organization has filed a lawsuit against the Equal Employment Opportunity Commission over its rules for employee wellness programs. Credit Justin T. Gellerson for The New York Times
Employers have raced to offer workers a hefty financial incentive to sign up for programs meant to improve their health, submitting personal medical details in the process. But as these programs have spread, so has resistance — with employees dubious about sharing that information with employers.

On Monday, that tension erupted in a federal lawsuit against the government agency that handles the rules on these so-called wellness programs. It is the first major legal challenge of the rules, and will add fuel to one of the hottest debates in health care.

The suit, filed by AARP, the large consumer advocacy group that represents older Americans, argues that these programs violate anti-discrimination laws aimed at protecting workers’ medical information. It also questions whether the programs are truly voluntary, because the price of not participating is high for some workers.

The target of the suit is the Equal Employment Opportunity Commission, the federal agency responsible for issuing the rules governing what employers can do. The agency issued new rules on the programs in May.

The final rules issued by the commission allow an employer to set the incentive as high as 30 percent of the annual cost of a worker’s health insurance coverage. The rules sought to clarify uncertainty over how employers can plan wellness programs. They go into effect in 2017.

The AARP is seeking a preliminary injunction. The commission declined to comment on the suit, which was filed in Federal District Court in Washington.

Many employers have instituted wellness programs, which might include initiatives to help workers stop smoking or manage a chronic condition like diabetes. Under the Affordable Care Act, the law that overhauled the health care system, companies can use financial incentives as a carrot — or stick, depending on one’s vantage point — to entice more employees to participate in these programs. The goal is to reduce overall health costs.

At issue is whether some programs that require an employee to fill out a health risk assessment or undergo biometric testing for conditions like high blood pressure are forcing workers to hand over private medical or genetic information.

Critics, which have included the Equal Employment Opportunity Commission, say some programs violate anti-discrimination provisions under other laws like the Americans with Disabilities Act. Those provisions are meant to protect someone with depression or a genetic predisposition for breast cancer, for example, from having to tell an employer about a condition.

In issuing the final rules, the commission seemed to reverse course, said Dara Smith, a lawyer representing the AARP, in making sure that giving out private medical information remained strictly voluntary.

“Everyone expected that the E.E.O.C. would continue its old approach,” she said.

The agency has aggressively pursued cases in which it argues employers have overreached with wellness programs. Employers have typically favored more latitude in being able to persuade employees to sign up for wellness programs and provide medical information that will help them better manage any chronic conditions. The commission, on the other hand, has said that some of these efforts violate anti-discrimination laws.

The agency has had a mixed legal record, however. It also faced pressure from the White House and others to avoid derailing employers’ efforts, which were seen as central to containing health care costs.

Now, the AARP argues, the agency’s rules “enable employers to pressure employees to divulge their own confidential health information and the confidential genetic information of their spouses as part of an employee ‘wellness’ program.”

The cost of individual coverage averages $6,435 a year, according to the Kaiser Family Foundation, which means workers could be forced to pay nearly $2,000 for refusal to participate.

“On average, these penalties would double or even triple those employees’ individual health insurance costs,” the AARP contends in its lawsuit.

While the AARP says employers are welcome to offer wellness programs that ask for medical information, it says they should be truly voluntary.

“It would be very difficult to have an across-the-board number that wouldn’t coerce anybody that wasn’t zero,” Ms. Smith said.

Published by connie dello buono

Connie Dello Buono is based in Sunnyvale California. Her first ebook is about women's health, Birthing Ways Healing Ways and her recent one is about cancer prevention, Curated Healing Ways. She had helped women have holistic childbirth as childbirth educator, founded Motherhealth, to serve seniors in the bay area with holistic caregivers and blogs at www.clubalthea.com with more than 10,000 health and finance related posts. Connie trains her own caregivers, which are the favorites of most bay area seniors who are home bound and alone. She is active in the rehab and nursing facilities, volunteering on music and movement for seniors. She is a member of Lion's club and offered scholarships to students in the Philippines. She is active at churchinsunnyvale.us and has Fridays Bible home study in Sunnyvale using the recovery version of the Bible , free at biblesforamerica.us She loves dancing and teaching and her courses can be found at https://teachclub.com/@thriveafter60 She is California Life Insurance licensed providing life insurance for older adults with health issues and helping women retire safely with income for life. at menloassetca.com , she helps with 401k rollover. 3 Benefit plans - Mortgage protection using term life insurance to pay for mortgage balance in event of death - Final Expense plan using Single Issue Whole Life Insurance, with cash back, disability benefit and guaranteed in the presence of health issues - Fixed Index Annuity retirement plan for safe, accessibility, less fees, less taxes, avoids probate as it goes directly to beneficiaries, rate of return with no downside market participation. She brings compassion and understanding to the needs of her clients, bringing holistic approach in health and life insurance. Her goal is to free families from worries especially during covid with caregivers and life insurance in the presence of health issues, especially for women. She can be reached at 408-854-1883 , motherhealth@gmail.com

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