Employee health surveys could violate federal statute

Could overly broad health questionnaires now issued as part of some employee wellness programs put workers at the risk of discrimination? That is a question currently concerning U.S. Rep. Louise Slaughter. In a letter sent to the members of the federal Equal Employment Opportunity Commission last year, Slaughter expressed concern over employer-issued health questionnaires that ask about sensitive personal information such as family health histories and genetic conditions and which also include financial penalties for non-participation.

“I authored the Genetic Information Nondiscrimination Act (GINA) to provide Americans with strong protections against discrimination on the basis of their genetic information in both health insurance and employment,” wrote Slaughter in the letter, dated Sept. 23. “Any employer wellness plan that coerces employees to provide genetic information through monetary incentives would violate the core intent of GINA and other civil rights laws’ protections.”

Slaughter’s letter was prompted by a series of articles in The New York Times about a controversial wellness questionnaire at Penn State University that required faculty and staff to release personal information about marital satisfaction and other topics or face $100 surcharges every month in fees. Slaughter wrote that she does not know if family health histories, genetic information and other areas covered under GINA were requested in the Penn State questionnaire. She argued, however, that requiring workers to release a broad range of private information or face financial penalties is a recipe for discrimination and abuse.

The question of the nature and form of employee health questionnaires is not an idle one; with medical costs rising rapidly and the ongoing enactment of the Affordable Care Act, employers have been encouraged to find ways to reduce medical costs and head off preventable health problems among workers. The Penn State case may also be indicative of larger health industry trends; currently, 36 percent of large firms and eight percent of small firms issue health questionnaires with some form of financial compensation or penalty attached, according to a Henry J. Kaiser Family Foundation study released in 2013.

Margie Hodges Shaw, a University of Rochester professor of bioethics said these programs have been around for a while and for good reason; research has shown that people are more likely to succeed at achieving health goals if there is an incentive attached.

That said, Shaw understands the viewpoint of those who see the potential for abuse. Questions about mental health and family medical backgrounds may often be reasonable for a personal physician to ask. It is not so clear whether they are appropriate for an employer to ask. Indeed, if not implemented carefully, such employee wellness programs have the potential to be problematic — particularly if they include some sort of penalty for the employee that hinges on participation, she said.

Many potential problems can be mitigated or eliminated with a bit of forethought, Shaw argues. “Employers can tailor their questions to the specific needs of their programs,” she added. For example, if an employer is mostly interested in promoting smoking cessation in the workplace, including questions about birth control are unnecessary. “I think good sense can show you where the line is,” she said.

One other thing that can help is widespread buy-in by the employees, Shaw said. Giving workers a say in the creation of these programs and making the creation process transparent can go a long way towards ensuring widespread employee satisfaction with them.

Lindy Korn, a Buffalo-based attorney who represents plaintiffs in discrimination and civil rights law, is more skeptical. “I think you’re going to start seeing (more) cases on this issue,” she said. Employers would be better off refraining from delving into family medical histories and other sensitive topics altogether. “If you can’t ask it when you hire someone, why would you ask it (after),” she added.

In follow up correspondence to Slaughter dated in November, Todd Cox, the EEOC’s director of communication and legislative affairs said the agency has received more than 1,100 charges involving allegations of genetic discrimination since GINA’s implementation in 2008. That does not include allegations that were handled in-house by businesses and never made it to the federal level.

Cox also said that the EEOC shares Slaughter’s concerns and agreed that employer health programs cannot penalize employees that decline to answer questions about genetic health conditions. “Rather, the employee must be allowed to earn whatever inventive the employer may offer even if he or she does not answer questions seeking genetic information,” he said. He also acknowledged Slaughter’s request to publish further guidance for workers and employers as to what is and is not acceptable in questionnaires, saying that his agency is already working on such guidance.