Two months ago Al wrote a column titled: Are Obamacare Wellness Programs Soon to be Outlawed? Truthfully that headline was picked for its sky-is-falling value, in an attempt to generalize one Equal Employment Opportunity Commission (EEOC) lawsuit against one wacky wellness program to an EEOC risk for wellness programs everywhere.
As luck would have it, the sky has now fallen — right on the head of Honeywell…and the EEOC is indicating more lawsuits are to come. The scary part here: Unlike the wacky wellness program above, Honeywell was in compliance with the Affordable Care Act (ACA), but compliance with the ACA doesn’t seem to get you a free pass on the EEOC’s own “business necessity” requirement, plucked from the Americans with Disabilities Act (ADA), which they enforce.
Essentially the Honeywell lawsuit means no company doing invasive biometric screenings and mandating doctor visits or measuring health outcomes on individuals, and that has a significant financial forfeiture attached to it, is immune to prosecution, even if they are in compliance with ACA.
(Whether an incentive is considered a penalty in disguise is not known; that is why we use the word “forfeiture.”)
The even scarier part is that the EEOC is correct: as we have expounded for almost two years now, wellness programs mandating overscreening and annual checkups have no business necessity. To begin with, these “employer playing doctor” programs can harm employees:
A workplace screen can find heart attacks…at the cost of a million dollars apiece when emotionally draining false positives and potentially hazardous overtreatment are taken into account;
The Journal of the American Medical Association recommends against mandatory checkups
Finally, an upcoming, embargoed, peer-reviewed article in a major journal concludes that the costs and unintended health hazards of weight control programs generally overwhelm the benefits.
But provided alternatives are offered, companies could still claim business necessity if, indeed, these programs saved money despite the harms to employees. (The latter might create some OSHA problems, but those are hypothetical whereas EEOC is the elephant in the room.) A few of you might ask: “Didn’t Ron Goetzel of Truven and others just write a journal article and show a webinar saying: ‘The overwhelming majority of published studies show positive results’?”
Unfortunately, those “positive results” – as should be well-known to the presenters, who have access to the internet – fail any sniff test. This material continues to cite Professor Katherine Baicker even though she has stepped back from her old (2009) ROI conclusion three times. More recently, she has, with great justification, blamed overzealous readers for selectively interpreting her findings. Ron Goetzel also continues to cite the state of Nebraska, which his committee gave an award to, as a “best practice” despite the revelations that the state’s vendor, Health Fitness Corporation, lied about saving the lives of cancer victims, and that the vendor also paid his award committee through a sponsorship. Likewise, their misinterpretation of the RAND study has drawn a rebuke from the author of the RAND study, in an upcoming letter to the editor.
Clearly, the EEOC is onto something about a lack of business necessity, when even the alleged best-and-brightest wellness defenders are forced to rely on Nebraska and RAND to support their arguments. Not to mention selective omissions — the presentation’s extensive section on “critics” had no mention of either of us, despite a recent cover story citing Al as the field’s leading critic, because both these two presenters know our math is irrefutable. These industry defenders also have spotty memories, as when they claim that it is valid to compare the performance of active willing participants against a control group of unmotivated non-participants and dropouts — forgetting that they gave out a Koop Award to one of their sponsors who showed exactly the reverse – a substantial separation of would-be participant and would-be non-participant cost trends even without a program to participate in.
Inoculating Credible Wellness Programs
The Honeywell experience can be avoided. Taking three steps — the first two of which are free —essentially guarantees that no employer will end up on the hot seat with Honeywell.
First, sign and adhere to the Workplace Wellness Code of Conduct. This allows employers to focus on avoiding employee harm and creating a framework for business necessity. This document is provided gratis for any employer, from the authors.
Second, employers who sign this need to get at least one vendor/carrier to sign and implement its counterpart, the Workplace Wellness Vendor Code of Conduct, also available gratis.
Third, we personally will do an in-depth figurative and literal walkthrough to see if indeed the wellness program is compliant with United States Preventive Services Task Force guidelines and Americans with Disabilities Act (ADA) requirements. If not, we will provide a list of next steps to get into compliance.
The inoculation? A six-figure guarantee that you, the employer, will not be the subject of a successful EEOC lawsuit. Besides providing some protection on its own, this level of financial commitment may create a self-fulfilling prophecy, being a pretty convincing piece of evidence that business necessity and employee health are the goals, as measured by an objective and qualified third party, and meeting ADA standards.
It’s not just us. This isn’t “here is the problem and we are the only people with the answer” posting. Any consulting firm should be willing to do this, as we are, if they are giving good advice. Unfortunately, every screening vendor, every alleged wellness expert, and most of the “professionals” in benefits consulting firms have done just the opposite: proposed massive, highly financially incentivized or penalized programs that get companies into fine messes like Honeywell’s…and then profess shock that this happens and have no clue how to get them out.
Al Lewis and Vik Khanna are co-authors of THCB’s first e-book, Surviving Workplace Wellness With Your Dignity, Finances, and Major Organs Intact.