The worker's health: whose business is it?

Business & Health, Dec, 1997 by Jan Ziegler

Others argue that this is the only program that is fair to all employees. "Why should a person who is responsible subsidize a fellow employee who doesn't give a darn? That's not fair," says Bob Griffin, CEO of Escalade Sports, Inc., the Evansville, Ind., maker of Ping-Pong tables, basketball backboards and other sporting goods. Escalade employees who do not attempt to bring smoking, cholesterol, blood pressure or weight under control pay more for their health coverage.

LEGAL AND ETHICAL CONCERNS

The Health Insurance Portability Act of 1996, which covers the issue of incentives, does not rule out positives like T-shirts and gift certificates. But what it has to say about raising premiums is unclear.

The act does not restrict the amount an employer may charge for coverage. It also allows an insurer or health plan to establish premium discounts or rebates and modify copayments or deductibles in return for adherence to "programs of health promotion and disease prevention."

The U.S. Departments of Health and Human Services (HHS), Labor and Treasury have a panel of experts working on regulations that will be used to enforce the law. One draft equates "programs of health promotion and disease prevention" with "bona fide wellness programs" but has yet to define clearly what a bona fide wellness program is. A draft of this definition has been distributed for comment, an HHS staff analyst involved in the process said.

The analyst - who declined to be identified for this article - said the comments were still under review and that revisions were anticipated. The final regulations are not expected to be completed until the end of 1997.

In the meantime, employers have been seeking guidance elsewhere - specifically, from the ADA and the Rehabilitation Act of 1973. One issue raised by Conrad and others interviewed for this story is whether an employer can discriminate in hiring, promotion or other decisions based on whether the job candidate has a medical condition or even a flaw in wellness habits.

Under these two laws, the answer, apparently, is No. Both prohibit discrimination against otherwise qualified individuals when they have disabilities, although the Rehabilitation Act specifically applies only to organizations or programs receiving federal funding.

According to Kathy Bakich, an attorney with the Washington, D.C., resource group of William Mercer, the ADA permits an employer to ask a job candidate to submit to a physical exam, but only if all employees must have such an exam. Employers cannot then refuse to hire the candidate based on medical condition.

The ADA, Bakich said, protects people who are disabled or who appear to be, who have a record of disability, who are regarded as having a disability or who live with someone who has a disability.

The laws have already been tested with regard to obesity. For example, the U.S. Court of Appeals found in 1993 that a state agency in Rhode Island violated the Rehabilitation Act when it refused to hire an obese woman as institutional attendant for mentally retarded patients. The employer based its decision solely on her weight and perceived her as handicapped, when she was in fact qualified to do the job.