Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, and Conceptual Confusion

By Strassle, Camila; Berkman, Benjamin E. | William and Mary Law Review, May 2020 | Go to article overview

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, and Conceptual Confusion


Strassle, Camila, Berkman, Benjamin E., William and Mary Law Review


ABSTRACT

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are "voluntary" and "reasonably designed" to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district court in January 2019, leaving the legal scope of wellness programs in flux. The U.S. District Court of Connecticut now has a case before it that could start a national overhaul of these programs.

In this Article, we give a scientific and legal overview of wellness programs and explain why wellness programs are a source of ethical controversy. Given the unsteady evidence on wellness programs' benefits and their real potential risks, we argue that more should be done to regulate their scope and design. A robust interpretation of the relevant statutes would help protect workers in the face of indecisive evidence. To this end, we conclude with an attempt to resolve the widespread disagreement over the terms "voluntary" and "reasonable design" with the goal of providing courts and regulators with a more workable framework to apply.

INTRODUCTION

I.     THE DUBIOUS EVIDENCE ON PROGRAM BENEFITS
       A. Early Enthusiasm
       B. Reassessing the Evidence

II.    INTENSIFYING CONCERNS ABOUT PROGRAM RISKS
       A. Risks of Health Screenings
       B. Risks of Financial Incentives
       C. Additional Risks
       D. Balancing Risks and Benefits

III.   A LACK OF SUBSTANTIVE DIRECTION FROM THE LAW
       A. Federal Statutes and Regulations
          1. HIPAA and ACA: The Reasonable Design Criterion
          2. ADA and GINA: The Voluntariness Criterion
          3. Regulatory Confusion
       B. Judicial Treatment

IV.    A CONCEPTUAL PATH FORWARD
       A. Voluntariness
          1. Adequate Information
          2. Noncoercion
             a. The Moralized Approach
             b. The Value-Neutral Approach
       B. Reasonable Design

CONCLUSION

INTRODUCTION

Sustained growth in healthcare spending has prompted employers to seek options for reducing their overall medical costs. (1) One widespread approach has been to invest in workplace wellness programs, which incentivize workers to identify health issues and take steps to improve their well-being. (2) The underlying logic of these programs is that employers can mitigate total insurance costs by promoting employee health. (3) As such, wellness programs typically encourage workers to stop smoking, join a gym, lose weight, or get preventive health screenings in order to make them healthier and more productive. (4) These programs are now available to over sixty million U.S. employees, and the revenue of the wellness industry has more than quadrupled to eight billion dollars since 2011. (5) A handful of states have also started expanding wellness programs into Medicaid. (6) In short, the programs are a highly complex and entrenched feature of U.S. employment.

Policymakers have frequently assumed that the benefits of such programs are self-evident; intuitively, investing in employee health seems good for employees. (7) However, a thorough look at the scientific literature on wellness programs supports a more skeptical view. Specifically, the presumption that programs benefit health or influence costs is far from substantiated by the literature. (8) Meanwhile, these programs have come under scrutiny, and some have raised doubts about whether the programs harm participants. (9) Given the lack of conclusive data on wellness programs' benefits and harms, one would expect such programs to be subject to significant regulatory oversight in order to protect program participants. …

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