Kirschner argued the EEOC proposed rule would not be in line with health care insurance eligibility rules that are linked to voluntary wellness programs like the one at Iron Mountain.
The state of Kentucky, which also filed suggestions to the EEOC, operates a LivingWell wellness program used by more than 137,000 employees who agree to undergo a health assessment or biometric screening, with the data kept confidential with HumanaVitality, a third party. Participants in LivingWell earn Vitality points, which can be redeemed for prizes such as movie tickets, digital cameras and hotel stays, with values of up to $300.
The proposed EEOC rule has generated controversy. Of more than 80 online comments, most asked the EEOC for more information, raised objections or made suggestions. Part of the EEOC's intent is to offer guidance to companies on the extent that employers can use financial and other incentives to get workers to participate in wellness programs so that they are truly considered voluntary and not coerced.
"I'm concerned about the proliferation of employee wellness programs that seem to be coming ever-more intrusive and coercive," wrote one commenter to the EEOC, identified only as Ann Kelly. "If employers may lawfully discriminate against people on the basis of intimate, personal health matters, where will that end?"
Compelled to join a wellness plan?
Concerns have been raised that if a company offers a worker a free fitness band, the worker might feel compelled to join the company's wellness program. Half of all U.S. shipments of fitness bands, such as those from Jawbone and Fitbit, are sold to companies, which often use them to promote wellness plans, said JP Gownder, an analyst at research firm Forrester.
"There may be instances where people are ostracized for not participating in a wellness plan, and they may pay more for insurance," Gownder said in an interview. "Wearables have a lot to offer, and it's fantastic if an organization improves the health of its employees and engineers discounts with lower rates for the firm. But the dark side of this is that if enough people cede their rights to privacy and part of a system is tracked ... it could put those who didn't participate at a disadvantage."
Gownder said an employee might have a legitimate reason not to be physically active, because of a disability, including a mental illness, for example. "We're moving down this road in the absence of regulation," he added. As more employees join a wellness program, he said, it switches from offering advantages to active people to becoming a requirement for everyone.
Employers 'up in arms'
Timothy Collins, a lawyer specializing in employee benefits with the law firm Duane Morris LLP, said businesses are widely concerned that the proposed EEOC rule will impose more federal regulation on top of non-discrimination rules that are already part of HIPAA and the Affordable Care Act.
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