Affordable Care Act or not, millions of Americans still rely on their employers for health insurance. And with that benefit comes great responsibility (and potential upset) which is exactly the reason the EEOC hope their latest case in Minnesota is successful.
The logic at work is that a healthy workplace means less for health insurance premiums, and so sometimes employers ask their employees to take routine medical tests. But the EEOC is currently suing Honeywell International Inc. on behalf of some employees of the company who has been requiring employees to take biometric tests–and punishing them (and their spouses) when they don’t. As Tom Crane writes on the San Antonio Employment Law Blog:
Honeywell’s tests include blood pressure, cholesterol, and glucose and indications regarding whether the employee has been smoking. The EEOC filed this lawsuit in Minneapolis last month. Employees who refuses to take the tests could be fined up to $4,000 in surcharges and additional health care premiums. Honeywell says it wants to protect those employees who maintain a healthy lifestyle. The employer says the healthier employees should not subsidize the less healthy lifestyles of other workers. See CBS News report. And, of course, Honeywell appreciates, I am sure, that lower costs affect its bottom line.
It’s essentially the same steps that the NBA has started taking in scouting its players. Though they’ve always been interested in newer technology, Pablo S. Torre and Tom Haberstroh wrote for ESPN that NBA officials have started taking it a step further by measuring biometric details–which they worry could easily determine how valuable players are. They wrote:
NBA executives have discovered how to leverage new, ever-shrinking technologies to supervise a player’s sleeping habits, record his physical movements, appraise his diet and test his blood. In automotive terms, the league is investing in a more accurate odometer.
“We need to be able to have impact on these players in their private time,” says Kings general manager Pete D’Alessandro. “It doesn’t have to be us vs. you. It can be a partnership.”
A lovely sentiment, at least in theory. But how long will it be until biometric details impact contract negotiations? How long until graphs of off-court behavior are leaked to other teams or the press? How long until employment hinges on embracing technology that some find invasive?
“Employers dictating the health care of their employees is a conflict of interest that cannot be overcome,” says Alan C. Milstein, a leading bioethics attorney and sports litigator who often represents NBA players. “I just refuse to believe that the purpose of monitoring on any long-term basis is the health of the employee. If the purpose is to predict performance, that’s not a health care purpose. That’s an economic purpose.”
It’s not quite the “Gattaca” level of monitoring, but it might feel a bit close for some. This is only the beginning of where these issues might go, since the technology is so new and no complaints have been filed with the NBA as of yet—so it remains to be seen if the EEOC would get involved. Also, seeing as how the Honeywell case is already getting away from them (the suit is the third case filed by the EEOC that challenges corporate wellness programs and a U.S. judge has recently denied their bid for a temporary restraining order) only time will tell how intently employees’ health will be monitored.
Gauri Punjabi of Employment Matters, in writing on the aforementioned case and one other, said employers should feel free to continue with such programs:
Despite these cases, well-intentioned employers seeking to incentivize their employees to live healthier should not be deterred from instituting wellness programs. So long as such programs are truly voluntary, particularly where the required medical examinations and inquiries have no relation to the employee’s job or any business necessity, and do not have any penalizing effect on an employee who declines to participate, the programs should pass EEOC muster.
Those criteria are really the key here. If employers’ wellness programs are truly well-intentioned, with the goal of improving employees’ lives in a non-invasive and non-mandatory way, that’s all well and good. But if this starts to look like the NBA, where biometric data is used for cost analysis and performance decisions—that’s a short step away from discrimination, the EEOC’s ultimate target. The commission may have been deterred initially here, but given their full-court press on new forms of discrimination in other areas, you can bet they’ll keep coming after wellness programs that step out of bounds.