In fact, in 2011, the Surgeon General issued the nation’s first National Prevention and Health Promotion Strategy. The Patient Protection and Affordable Care Act (PPACA), also known as Obamacare, which goes into effect in January 2014, also includes many prevention provisions.
One major aspect of the PPACA alters the way employers can run workplace wellness programs. While these programs have the potential to create better health results for many, they also have the potential to unfairly burden individuals with disabilities.
Employers are encouraged to use various incentives, including cheaper health insurance premiums, to engage employees in a wellness program. Providing equal access to all ensures that individuals with disabilities or chronic disease do not end up paying even more for health care than they currently do. Protections under the Americans with Disabilities Act (ADA) and the PPACA mandate that employers provide equal access, and design programs in which people with disabilities can participate fully.
These protections, written into the PPACA and the ADA, can help those with disabilities navigate wellness programs without facing discrimination. Under these rules, employers are required to provide alternatives so that individuals with disabilities or medical conditions can participate in the programs to the best of their ability or get waivers if they are unable to participate at all. Individuals must know their rights in this area and be proactive with their employers to ensure equal access to the benefits provided by these programs.
EMPLOYER WELLNESS PROGRAMS
Employers across the country increasingly use wellness programs to encourage healthy behavior amongst employees. The 2021 Kaiser Family Foundation and Health Research and Educational Trust annual survey of employer health benefits found that 63 percent of small companies offered health benefits, including at least one wellness program, while 94 percent of large companies (200 or more employees) offered such programs.
These numbers are expected to continue to increase as health care costs rise. A report by the Georgetown University Health Policy Institute notes that, “[S]tudies estimate the return on investment for workplace wellness programs is between $3 to $6 in savings for every $1 invested… These savings result from lower use of health care services, reduced absenteeism and reduced workers’ compensation and disability claims.” Given these incentives, more employers are starting wellness programs.
They range from offering free flu shots or gym memberships to providing incentives for meeting exercise or health goals. The latter model—giving a reward for meeting a health target, or alternatively a penalty for failing to meet one—can greatly impact employees with disabilities. Individuals with disabilities or chronic diseases may not be able to meet a health goal due to their condition.
For example, an employee with a mobility disability may not be able to fulfill exercise goals or meet a certain Body Mass Index (BMI) target due to an impairment. Both the PPACA and the ADA offer protections against discrimination for individuals with disabilities. However, recent changes under health care reform have raised concerns among disability advocates. Disability Rights Legal Center (DRLC) and other advocates are monitoring these changes, and educating individuals with disabilities about their rights in order to ensure that the system works fairly for everyone.
PPACA CHANGES TO WELLNESS PROGRAMS
Under the PPACA and other laws, there are two types of wellness programs: participatory and health contingent.
Participatory wellness programs offer no reward or do not require an individual to meet a certain goal in order to receive the reward. An example of a participatory wellness program is an employer who offers a free nutrition class, or who pays for a gym membership, regardless of whether the employee goes to the gym or loses weight.
Health contingent wellness programs are ones in which an employee must meet a health-related standard or goal in order to receive a reward. For example, employees pay lower health insurance premiums if they participate in a smoking cessation program or reach a target cholesterol goal.
The PPACA alters the rules for health-contingent wellness programs by increasing the maximum permissible reward. Now, employers may offer a reward of up to 30 percent of the premium cost of health coverage. Prior to the PPACA, this cap was 20 percent. The maximum reward can be as high as 50 percent for smoking cessation programs and other tobacco-reduction programs.
In these situations an employee who fails to meet the goals set by the wellness program may pay 50 percent more in premiums than his or her counterparts. The concern is that it may be more difficult for individuals with disabilities to reach the standards set by wellness programs without taking into consideration necessary accommodations.
Individuals with disabilities must know what alternatives are available such as waivers or modified requirements as an accommodation, so that they can successfully navigate these requests and not end up paying more than their coworkers for health insurance.
While the PPACA laid out the increased reward allowances from 20 percent to 30 percent of premiums, the details of the practical aspects of the law are left to regulations, which are developed by the federal agency, in this case the US Department of Labor (DOL), which is charged with implementation of the law. Public comment is also required.
The DOL laid out proposed rules in November 2012 on how wellness programs will work in practice. Many disability rights advocacy groups, including the DRLC, submitted comments and feedback on the proposed wellness regulations.
Under the proposed new rules, employers must give employees a reasonable alternative standard to the wellness program goal, if it is “unreasonably difficult” for an individual to complete the advertised wellness program because of a medical condition. An employer also must give an alternative if it is medically inadvisable for the employee to participate.
For example, imagine an employer who offers a 30 percent premium reduction for employees who complete a wellness program, which includes a standard of running seven miles a week. For someone like Betsy, an employee who recently went through cancer treatments, running is not medically advisable. As a reasonable alternative, the employer should still give Betsy a 30 percent premium reduction if she walks four miles a week—a goal that her doctor may feel better suits her.
It might also be the case that Betsy’s doctor would advise against any physical activity in the months following her treatment. In this scenario, the employer should give Betsy a waiver, along with the 30 percent premium reduction because it would be medically inadvisable for her to participate.
How would someone know that his or her employer is required to provide a reasonable alternative or a waiver? All employers are required to let their employees know that these options are available in any materials that describe a wellness program. However, individuals may have to be proactive in requesting an alternative and negotiating what will count as a reasonable alternative.
Employees might only be able to sign up for employer wellness programs once a year. Individuals with disabilities must read the fine print of materials describing a wellness program, and speak up to inquire how to take advantage of a program that is available within the company, or to find out how to avoid being penalized or having a higher premium charged.
Individuals with disabilities or chronic conditions already pay higher out-of-pocket costs for medical care than healthy individuals. If such individuals do not get reasonable alternative standards that account for their medical situation, they may be charged higher premium rates as well.
While the regulations make clear that an employer can require a doctor’s note to show that an individual needs a reasonable alternative standard, the regulations do not go into detail about who would set and monitor the new standard. During the public comment period, disability rights advocates are raising concerns that privacy rights of employees and their dependents will be threatened if employers are able to monitor the standards.
For example, Charles’ employer has a wellness program that asks employees to reach a certain BMI through exercise. However, due to a disability that has left his muscles too weak to fully support him, Charles is unable to exercise enough to achieve that goal. A reasonable alternative may be for him to take cholesterol lowering medication, if it does not have adverse side effects. However, if his employer is allowed to monitor Charles’ progress by having access to his medical records, his privacy rights may be violated. Encouraging participation in wellness programs should not come at the expense of an employee’s medical privacy or overall health.
THE EXTENT OF ADA PROTECTIONS
Although the final rules of the PPACA regulations are in the works, employees should remember that the protections of the ADA still apply. For over 20 years, the ADA has protected employees by prohibiting discrimination based on disability with regard to employee benefits, such as wellness programs, and it will continue to do so. Moreover, the ADA prevents employers from screening potential employees to see whether they might have a disability, so that the employer could avoid providing a reasonable alternative to a wellness program.
Under the ADA, an employer is not allowed to ask a current employee whether he or she has a disability. Additionally, any medical records or information that an employer does collect during the program must be kept in a confidential file separate from the employee’s general HR file. If any of these rules are violated during the course of the wellness program, employees can file a complaint with the Equal Employment Opportunity Commission (EEOC).
Similarly, the Genetic Information Nondiscrimination Act (GINA) also has specific rules regarding wellness programs. Under GINA, an employer is only allowed to collect genetic information, including family medical history, in a completely voluntary wellness program. Therefore, if a reward or penalty is imposed within that program, then any questions in a health survey regarding genetic information must be voluntary. The form must clearly state this to the employees.
The good news is that the protections under the ADA are still in effect, and wellness programs might help move employers and employees alike to develop a health care system that focuses more on prevention. On the flip side,
by Anya Prince, Esq. and Laura Riley, Esq.
Prince and Riley are staff attorneys at the DRLC’s Cancer Legal Resource Center.
Articles in the Amy Brenneman Issue; Geri Jewell — Spring Into Action; Ashley Fiolek — Making the Move; Humor — A Tail of Two Kitties: CSUN — This is Your Future: Long Haul Paul — Riding the MS Trail: Tony Spineto — You Say Club Foot, I Say Marathon: DRLC — Federal Wellness Programs: Kendall Hollinger — Allergies on Ice: Charles Limb, MD — Jazzology & Your Brain: China — A Family’s Story of Strength: Scotty Enyart — PhD the Hard Way: Amy Brenneman — Chiming In: HE Fahed Bin Al Shaikh — Autism in the UAE: Caroline McGraw — Finding the Gifts in Everyonet; ABILITY’s Crossword Puzzle; Events and Conferences…