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When the Boss is a Medical Watchdog
The Monitor's View
November 4, 2005
Higher premiums. Higher co-pays. Anyone with employer-provided health
insurance has noticed that workers are being asked to shoulder more of
the rising cost of healthcare. But employers are also trying to build a
healthier (i.e. less expensive) workforce, and aspects of that trend
are disturbing.
It almost goes without saying that having healthy workers helps the
employer as well as employee, and that improved health is a desirable
goal for any society. But what if an employer, in trying to encourage a
healthier lifestyle among workers, asks about a person's medical
history? Suggests a course of preventive or curative action? Or decides
not to hire a person who poses too much of a health-cost risk?
These questions relate to privacy, choice, and discrimination, and as
premiums rise they're bound to come up more frequently.
The latest example of concern involves retail giant Wal-Mart. A recent
internal memo from the benefits vice president to the board of
directors proposes adopting a more affordable health plan for
employees. So far, so good. But the memo, leaked by an anti-Wal-Mart
group to the media, ventures into murky legal waters when it suggests
controlling costs in part by trying to "dissuade unhealthy people from
coming to work at Wal-Mart." This might be done by "designing all jobs
to include some physical activity (e.g., all cashiers do some cart
gathering)."
The memo notes that Wal-Mart's workforce is "aging faster" and is
"sicker" than the national average, particularly in relation to
obesity. The board hasn't yet acted on the screening proposal, but if
Wal-Mart adopts it, and it's code-speak for rejecting older job
applicants or a category of obesity covered by the Americans with
Disabilities Act, that could violate federal antidiscrimination laws.
The US economy depends on "at will" employment for a flexible labor
force. There's nothing illegal about screening out unhealthy employees
- if it doesn't violate federal laws banning discrimination based on
sex, race, age, religion, ethnic group, or disability. That's why it's
legal, for instance, for Union Pacific to refuse to hire smokers; they
don't fit those federal criteria.
Even if the federal government doesn't consider this discrimination,
many states do. Since the late '80s, they've passed "lifestyle
legislation," blocking companies from discriminating against workers
for legal activities off the job. So Union Pacific can shut out smokers
in only seven states.
There are different issues at stake inside a workplace, when employers
try to change unhealthy behavior. Voluntary "wellness" programs - a
growing trend - give employees a break on healthcare costs if they
exercise more, get screened for certain diseases, or alter their diets.
Some companies also penalize smokers. These practices mirror insurance
firms: reward low risk, punish high risk.
But such programs raise serious questions. How voluntary is voluntary
when a suggested lifestyle change is tied to money? Who defines what
constitutes health, or how best to achieve it? Can medical privacy laws
be adequately enforced? How deeply might a company peer into a person's
private life to find unhealthy habits?
Rising health costs are pushing employers into gray areas of civil
liberties. Americans should be alert.
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