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Collecting Employee Health Information-is it Legal?

Q. My company offers a wellness program as part of our health insurance. I love the on-site exercise classes and yoga. Some people go to weight loss groups. Now they want to collect information on us – what we weigh and even more personal health information, which can affect what we pay for insurance. Is this legal?

A. Both employers and employees have been hit hard by crippling health insurance premiums. In an effort to bring down costs, many companies have tried to encourage employees to participate in voluntary health and wellness programs such as yoga, discounted gym memberships, weight loss and smoking cessation. Unfortunately, the results from these voluntary programs have been underwhelming and health insurance costs continue to skyrocket. Now companies are trying a different approach: asking employees to divulge sensitive personal information such as height, weight, cholesterol and glucose levels and to actively participate in exercise and disease management programs. Employees may be rewarded with insurance discounts or punished with premium increases in order to insure compliance.

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A number of large employers have moved into wellness programs that require employees to report their height, weight, body fat and glucose and cholesterol levels to a confidential third party, the company’s health insurer. Failure to do so results in the employee paying an approximate additional $600 in insurance premiums. Some companies are even planning to expand the programs to spouses and dependents.

To understand the legal issues associated with these wellness programs, I consulted with employment law expert, Valerie Samuels, partner at the Boston firm, Posternak Blankstein & Lund LLP. While only a handful of courts have addressed this issue, Attorney Samuels noted that the tide has turned in favor of such programs.

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The federal law known as the Americans with Disabilities Act has a safe harbor exemption for bona fide wellness programs. Also, effective 2014, Obama Care regulations increased the amount employers may reward employees who comply with health contingent wellness programs from 20 percent to 30 percent of the cost of employee only health insurance (and 50 percent for smoking cessation programs). The law contains protections for disabled employees and those for whom it is unreasonably difficult to meet the wellness standard.

Many employees are reluctant to divulge personal information about their health and fear that doing so will lead to discrimination against disabled employees or those with chronic health conditions. Keep in mind that we all benefit when health insurance costs are under control. Employees are being asked to assume added responsibility for their own health which may just mean saying no to that Big Mac, super-sized soda or cigarette. It’s a brave new world out there.

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