EEOC’S Proposed Rule Versus Wearable Promoting Companies’ Wellness Programs

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This article is intended to brief the readers regarding the pros and cons of the proposed EEOC rule that sets up threshold against various wearables used by companies in their wellness programs to promote them.

The improvements suggested by the Federal watchdogs in prevalent workplace wellness programs has raised concern over confidentiality of personal data contained in consumer-grade fitness bands and smartwatches.

The amendments proposed by the US Equal Employment Opportunity Commission (EEOC) applies to Title 1 of the Americans with Disabilities Act (ADA) of 1990 which refers to employer wellness programs in around 580,000 US companies. Throughout this day, public comments are being sought online.

Of course, the proposed rule, along with the documents provided in its support, is quite detailed and, yet, does not contain direct reference to the worker data in fitness bands such as Fitbit or smartwatches like the Moto 360 or Apple Watch. Nevertheless, said the EEOC spokes person James Ryan, the information gathered in accordance with the fitness program by companies may possibly fall under the proposed rule if it is considered medical information. A person’s heart rate over a period of time, for instance, is a medical information, and, therefore, subject to ADA’s confidentiality requirements. It little matters how this bit of information is obtained by a company. Details such as how much calories a person consumes or spends and how much he walks everyday are not medical information and so it may be disclosed without violating ADA’s propositions.

The proposed rule doesn’t make it explicit how many times companies can gather such data of a person participating in wellness programs and uses devices which transfer his/her health-related data to databases which are said to be confidential. As it is, many new smartwatches and fitness applications include in their specifications a feature that helps record a person’s heart rate after a time-bound session of physical exertion.

Scott Kirschner, the director of benefits strategy at Iron Mountain, a data management company, provided a very revealing instance of how the confidentiality of data of health information of some 1600 workers working in his company was maintained by keeping the information gathered from such consumer-grade wearables under a wellness program called LiveWell was assigned to Limeade’s – a third-party’s – software database. In other words, it was beyond the reach of Iron Mountain. What needs to be pointed here is that the wearables used to gather such data weren’t biometric markers. And the usage of this data was perfectly in keeping with Health Insurance Portability and Accountability Act (HIPAA) of 1996. This instance provides good employer practice regarding the use of wearables for their wellness programs.

Impact of EEOC’s rule on companies following fair practice in implementing their wellness program

Giving his piece of mind in public opinion that was sought online, Kirschner said that if EEOC’s proposed rule is to come into effect, the only way left to his company is to wind up its wellness program or put on the employees the burden of cost that the company might incur because of that. He added that this proposed rule also clashed with healthcare insurance eligibility rules which pertain to the voluntary wellness programs such as the one that Iron Mountain itself was conducting.

The state of Kentucky, which runs a wellness program called LivingWell, also posted its suggestion to EEOC that more than 137,000 employees were participating in the program which included health assessment and biometric screening. The data gathered was in the custody of HumanaVitality’s, a third party, database. The participants were also given incentive in the form of Vitality points to be redeemed for such prizes as movie tickets, digital cameras and hotel stays – prizes amounting to $300.

Out of some 80 comments received online, most comments expressed objection to EEOC’s proposed rule or put forth some suggestions or called for clarification of the same. It seems that EEOC’s proposed rule is partly meant to be taken as a suggestion to companies regarding how far their use of incentives to bring their workers round to accept participation in their wellness programs can be considered legitimate. It seems to draw a line between voluntary participation and participation under coercion.

Ann Kelly, one of the commentators, voiced this particular aspect when she complained about the wellness programs of companies which were increasingly driving at differentiating workers on the basis of the data pertaining to their health.

Compulsion to participate in a wellness program

JP Gowunder, the analyst at Forrester, a research firm, provided an instance of how companies trapped their workers to participate in their wellness programs by offering them fitness bands like Jawbone and Fitbit free-of-charge, a tactic which is proven quite effective as it resonates with the workers. Not for nothing that more than half of the purchases of fitness bands are made by companies.

Anything that comes free-of-charge is welcome for most! And this is what can’t be defined exactly as voluntary participation. This practice overtly promotes wellness programs. The promotional intention can also be established from the fact that in some instances the workers not participating in wellness programs were discriminated against, and they had to pay more for insurance.

Grownder did accept that the wearables can be put to good use but, if a sizable majority of workers choose to part with their privacy and if the data of the participants are tracked by companies, it might work against the interests of people who choose not to participate in such programs. If the latter have reasons for not being active due to health problem, they may have to pay dearly for it by not receiving the favor that the active members very much enjoy.

Employers’ objection

Timothy Collins, a lawyer working with Duane Morris LLP, said that the companies are prone to oppose EEOC’s proposed rule because it comes in addition to the rules already existing to safeguard workers against discriminatory treatment from their employers.

He also added that EEOC will surely take time to consider the objections raised by the employers before proceeding any further. Not until 2016 the proposed EEOC rule is going to be dealt with in a concrete manner.

So, the employers seeking to set aside the employees who are raising healthcare premiums do have relief for some time. The pros and cons are going to battle it out in the meanwhile. But, there is going to be a considerable support for such as Irina Raicu, the director of the Internet Ethics Program at the Markkula Center for Applied Ethics at Santa Clara University, who warns against giving undue weight to the claims made by the press releases for gadgets like Fitbit. This is because these claims just can’t hide the problems inherent in the concept working behind wellness programs.

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