The Preserving Employee Wellness Programs Act

Marci Anderson, MS, RD cPT of Marci R.D. Nutrition Consulting was kind enough to ask about wellness programs and the DANGEROUS S620 bill.  Here is my post for her:

http://www.marcird.com/blog/the-preserving-employee-wellness-programs-act

Hey Readers,

It’s not often that I talk politics on this blog. But after hearing Lizabeth speak at the MEDA conference a couple of weeks ago, I realized that I needed to have her write about this very important issue. Please, please take the time to read this. And if you have experience with this issue personally or know someone who does, consider following through on the call to action at the very end. Thanks for taking the time! The remainder of this post is written Lizabeth Wesely-Casella, Founder ofBingeBehavior.com.

The Preserving Employee Wellness Programs Act (PEWPA), Senate bill 620, is bad legislation that reduces employee protections and promotes discrimination within the workplace.  Though the title is deceptively innocuous, this bill allows corporations to invade personal privacy, cherry pick which employees get insurance coverage, and it allows corporations to penalize employees who find themselves unable to comply with arbitrary metrics potentially unrelated to health.

Front and center in this legislation is the fact that employee protections will be rolled back almost entirely.  The protections provided in the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) will not be available to those who challenge an Affordable Care Act (ACA) compliant wellness program because this bill strips those protections.  Practices that are currently prohibited by antidiscrimination legislation such as asking for genetic information from family members of employees and asking for mental health histories, will be allowed during program screenings should this bill pass.  Additionally, obesity related protections under the ADA are in jeopardy; protections that need to be strengthened, not repealed.  The Equal Employment Opportunity Commission (EEOC) will no longer be the guiding source for rules and regulations in these matters because this act is intended to supersede the Commission’s oversight.  

Additionally, allowing corporations to cherry pick which employees they will insure, using intrusive screening and arbitrary guidelines, the act undermines the ACA, which mandates that preexisting conditions be covered by insurance.

The driving force behind this legislation is the reality that corporate wellness programs are by definition a ‘one-size-fits-all’ answer to the question, ‘How can corporations contain health care costs across the board’?  Certainly there are some well crafted programs that address the overall health of workers, programs that cover prevention, chronic disease, mental health and are designed by treatment teams rather than human resources departments, however these programs are the exception rather than the rule.  It’s quite common that workplace wellness programs are designed and managed by human resources departments and consulting groups who benefit financially from reducing the insurance costs customarily born by the employer; also called “cost shifting”.

The ACA was originally designed to encourage voluntary wellness programs, however, S 620 distorts the spirit of the “voluntary” language by giving corporations the power to pursue cost shifting through punitive fines for noncompliance, some as costly as $4,000. These fines are a subterfuge for shifting health insurance costs onto people with chronic diseases.  For corporations, this bill is a windfall; for employees, this bill is a disaster.

For many groups of people, compliance with an employee wellness program is impossible; it is the opposite of supporting wellness.

For example, it’s estimated that nearly 15 million people in America suffer from eating disorders.  As we know, people who suffer from eating disorders come in all shapes and sizes, from frail to large bodied.  The person in the large body with binge eating disorder (BED) may not fit into the BMI guidelines of an employee wellness program and therefor be encouraged, incentivized or threatened with punitive fines if they don’t reduce their weight and size.  Eating disorders are a mental health condition so beyond the fact that being weighed and measured for compliance and being given health advice by anyone other than a medical professional or treatment team is inappropriate, these activities are likely to cause distress and have dangerous, unintended consequences.

Other examples include people who carry significant weight due to medications, health conditions or genetic predisposition.  The point being, weight metrics based health programs, influenced and administered by people without medical expertise are no supportive of health and overall wellbeing.  When implemented, programs using this model target people in large bodies and cause discrimination through fines, fees, loss of insurance, and possibly loss of employment.

Language exists within the ACA that allows employees to seek a “reasonable alternative health standard” if the wellness program goals are contraindicated for their personal health, however, research by the Obesity Action Coalition shows that a majority of employees are unaware of this language and therefore would not invoke the remedies were they needed.  S 620 scales this protection back, allowing employers to require employees seeking alternate accommodation to complete all medical requirements and request processing within 180 days, which for many people is impossible for a variety of reasons including geography, resources, expense, time off work and bureaucracy.

The bottom line is S 620 is a dangerous piece of legislation that strips employee protections, encourages weight discrimination and completely dismisses the importance of employee engagement.  If we want robust health in our workplaces, we must address how programs are designed and demand that they support job security, personal choice and individual needs.

Call to Action

We are asking for letters describing negative experiences and outcomes related to corporate wellness programs and people with EDs of any type.

Stories of:
Discrimination,
Triggering
Failure to inform or provide “Reasonable Alternative Standard” policies
Relapse
Any other harms
These stories will be aggregated and submitted to the Administration and/or the EEOC to help inform and strengthen the employee protections that are currently in jeopard due to Senate bill 620, the Preserving Employee Wellness Programs Act. This bill proposes changes to existing employee protections that would allow employers to ask invasive medical history questions including those about mental health and genetics. Also, it would allow businesses to penalize employees who choose not to participate in the programs with fines up to $4,000.

We need your help in flooding the EEOC and humanizing the reasons why invasive questioning, wellness programs based on weight metrics, Biggest Loser style competitions and punitive fines are direct discrimination to the 15 million Americans with EDs – many of which are part of America’s workforce.

Please send your stories, or stories of how your practice has been impacted by these programs directly to Lizabeth Wesely-Casella at admin@bingebehaivior.com at your earliest possible convenience – time is of the essence.

Thank you for your prompt attention and support in this activism. Your stories matter!

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