In March 2022, Yale University announced a motion to settle a class action for $1.29 million after employees alleged that the University’s Health Expectations Program violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). About 6,000 union employees were required to participate in the program, designed to encourage employees to take advantage of preventative health services, or else pay a weekly opt-out fee of $25 per week ($1,300 annually). The program required participants to receive medical screenings and share the results with Yale’s health care providers. Workers considered high risk, including those with conditions like diabetes, were required to receive “health coaching” to comply. Employee wellness programs like this one promise a win-win: keep workers healthy while reducing healthcare costs for employers. However, as they have become more prevalent, their effect on health remains dubious. What is certain is that they open a window for employers to peer into employees’ lives outside of work, raising serious concerns about worker privacy and workplace discrimination.
As of 2019, 88% of large employers (200 or more workers) offering health benefits also offered some kind of worker-wellness program. Many, like Yale’s, feature financial incentives in the form of penalty fees or rewards like reduced healthcare premiums. Under the Affordable Care Act (ACA), employers may offer financial rewards of up to 30% of the cost of healthcare premiums to incentivize workers to participate in wellness programs. As of 2019, 20% of large employers offered up to $1000 in incentives. Worker-wellness programs vary considerably, and many tie incentives to participation alone, offering free membership at a fitness center, or a reward for participating in health education seminars. However, the ACA also allows for nondiscriminatory “health-contingent wellness programs,” which require participants to meet certain health goals.
In spite of their popularity, the effectiveness of worker-wellness programs has been questioned. The most comprehensive study yet on the topic delivered underwhelming results, showing no substantial effects on sick days taken or health care spending, and no significant gains on objective health measures like cholesterol. More workers did, however, report taking conscious effort to improve their health. These lackluster results belie a major problem with wellness programs, which also confounds the ability to measure their effect: people who are already in relatively good health are much more likely to participate. Others who struggle with the health metrics considered by wellness programs can feel alienated by them, while some may be physically unable to participate at all.
Indeed, accusations of disability discrimination have plagued employee wellness programs, which may penalize workers who cannot participate due to disability, or who may avoid participating in order to avoid disclosing a disability. The lawsuit brought against Yale for its Health Expectations Program arose from confusion and conflict where the ADA, GINA, and ACA meet. The ACA specifically authorizes financial incentives for workplace wellness programs, but the ADA and GINA require that employee participation in wellness programs that involve sharing medical information remain “voluntary.” The Equal Employment Opportunity Commission (EEOC) defines “voluntary” programs as those which neither require participation, nor penalize workers for opting out. How much carrot or stick is too much for a program to be truly voluntary? The Yale case suggests that program fell on the wrong side of this thin line. However, the settlement leaves open the issue of whether financially significant rewards or penalties in wellness programs constitute coercion in violation of the ADA.
Laws like the ADA or Title VII of the Civil Rights Act of 1964 protect against employment discrimination on the basis of certain characteristics like race, gender, and disability. However, wellness programs often implicate characteristics that are not protected by law, most prominently weight. Obesity alone is generally not considered a disability under the ADA, and therefore not a protected characteristic. Body Mass Index (BMI), relied upon in wellness programs and well beyond to define obesity, is questioned as an indicator of health. Nonetheless, by that metric, nearly 2/3 of American adults can be considered obese. Wellness programs discriminate against workers based on weight most directly through outcome-contingent programs that impose a financial penalty on those who fail to either reach a certain weight or take prescribed steps to try to lose weight. Even programs that don’t financially penalize workers for their weight send a pernicious and discriminatory message that employees considered overweight, or those managing conditions like diabetes or high blood pressure, are less efficient, more costly, and less valuable to the firm.
Encroaching on Worker Privacy and Autonomy
Legal scholar Ifeoma Ajunwa has written extensively about the danger that worker-wellness programs pose to employee privacy. She describes worker-wellness programs as a kind of “participatory surveillance.” Wellness programs sometimes ask workers to turn over biometric information directly through screenings. Some programs offer workers wearable devices like FitBits to track activity metrics like steps taken in a day. According to Ajunwa, this data may remain accessible to employers. Further, when programs are run through third party companies (as is often the case — employee wellness programming has grown into an $8 billion industry), workers often have no knowledge or control over how their health data will be used. Overall, wellness programs significantly expand the employers’ gaze into workers lives off the clock.
Nowhere is this more evident than with regard to workers’ smoking habits. The financial reward that employers may offer for participation in wellness programs under the ACA rises from 30% to 50% of the cost of healthcare premiums for programs specifically intended to help workers quit smoking. The health case against smoking is so strong that it almost obviates just how far outside their lane employers have been allowed to step in order to discourage it. Recent conflict over workplace Covid-19 vaccination mandates has made the question of what health measures employers can demand workers take in their private lives especially salient. However, unlike vaccination status, it is not clear how smoking off the job poses any danger to others at work.
Well-Washing Dangerous Working Conditions
Beneath the purported benefits and drawbacks of workplace wellness lies an undeniable feeling that the whole phenomenon is a piece of theater. From days spent at desks to the repetitive motion of a warehouse order picker, workers face a slew of mental and physical conditions that can be tied back to the workplace. Long hours are among the most widespread and pernicious dangers to employee health. Rather than provide a concrete unconditional benefit like shorter hours or more frequent breaks, worker-wellness programs effectively leverage employer’s power over workers to put extra pressure on them to take health measures on their own. Some programs, like Amazon’s “Amazen” program that encourages workers to step into guided meditation booths to focus on their mental and emotional well-being amid 10-hour “megashifts” feel downright dystopian.
Employee-wellness programs never claim to be entirely altruistic, instead cast by proponents as providing a mutual benefit to workers and employers. As a matter of public health policy and employer initiative, this proposition cannot be serious in the absence of real measures to address the toll that work itself takes on employees’ physical and mental health.