Do Workplace Wellness Programs Promote Discrimination?

The obesity epidemic is costing employers. Earlier this year, The Conference Board estimated that obesity-related health problems cost US companies an estimated $45 Billion each year in medical coverage and absenteeism - more than smoking or problem drinking.

Not surprisingly, employers and health care plans have long recognized the importance of promoting and perhaps even coddling employees into participating in "wellness" efforts. The idea is a no-brainer: healthier employees are more productive - a great investment for any company.

But with any good idea, the devil is in the details. The legal limits and potential for well-meant wellness programs (especially when promoted by health-care plans and payers) for promoting discrimination are discussed in a recent article by Michelle Mello and Meredith Rosenthal from the Harvard School of Public Health published in the July 10 issue of the New England Journal of Medicine.

In their analysis, Mello and Rosenthal focus on the impact of the nondiscriminatory provisions of the US Health Insurance Portability and Accountability Act (HIPPA) of 1996, which bars health plans and issuers of group health insurance from discriminating on the basis of a health factor.

The general rule is that no person can be denied or charged more for coverage than other "similarly situated" persons because of health status, genetic history, evidence of insurability, disability, or claims experience. In this context "similarly situated" refers only to an employment-based classification, such as full-time or part-time, not on health factors.

As a result of this, health plans can only opt not to provide coverage for particular health conditions, if this applies to all "similarly situated" individuals and is not based on whether or not people actually have that health condition.

While HIPAA is designed to prevent health discrimination, it does allow insurers and health plans to reward members for participating in health-promotion programs (e.g. reduced premiums, payouts, etc.) as long as the reward is open to all members (irrespective of whether or not they actually have a health problem). HIPAA, however, makes it particularly difficult for plans to tie these rewards to actually achieving an individual health target - i.e. it allow rewards for participation but not success.

In the rare cases that insurers do tie rewards to achieving health targets, there are important restrictions in place. In this regard, the provision that in cases where it is "unreasonably difficult" or "medically inadvisable" for a person to satisfy the health standard owing to a "medical condition" must be offered a reasonable alternative standard.

As pointed out by Mello and Rosenthal, the problem with this restriction is that no definition of "medical condition" is provided. So whether or not someone with overweight or obesity can be expected to achieve a target weight ultimately depends on whether or not the prior presence of excess weight is defined as being a "medical condition" or not - obviously, this leaves the room wide open for weight-based discrimination. It is certainly easier for someone with little excess weight to achieve an arbitrary "ideal weight" than for someone with a lot to lose - no matter that actually keeping the weight off becomes an exponentially bigger challenge the more you lose.

It is clear that whether or not excess weight in a given individual is caused by genetic predisposition, psychosocial factors, comorbidities or obesogenic medications, or, is simply a matter of poor "choices" and "sloth" will in most cases remain a matter of debate.

To me, the overall problem remains in the focus of employers, insurers and policy makers in general on the promotion of individual changes rather on than shifting society as a whole to a healthier lifestyle for everyone.

Given the multidimensional sociocultural, psychological and biomedical nature of obesity, answering "chicken and egg" questions or trying to pinpoint the primary causal factor is nigh impossible.

Perhaps one solution is to take "weight" out as a measure of health - either as a promoting factor or as a target.

As I have pointed out repeatedly, good health is possible over a surprisingly wide range of body weights and there is a wide variation in individual susceptibility to "weight-related" health problems. No one weight cuttoff will work for everyone - clearly, we have no idea what a good weight target should be, as our definitions of healthy weight are entirely defined on the presence or absence of comorbidites and/or functional limitations in a given individual or on actuarial morbidity and mortality statistics that, in turn, are simply not helpful when dealing with individuals.

I certainly do not envy the lawyers and policy makers who have to address this complex issue with "legalese". I am glad I am just a simple clinician helping patients conquer their obesity one step at a time.

Look forward to any comments on workplace wellness and its legal framework in Canada (or in Germany from my German readers).

AMS
Edmonton, Alberta