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Workers Bite Back at Push for Wellness Programs

WASHINGTON (CN) — AARP claims in a federal complaint that federal regulators have abandoned their commitment to protecting workers from having to divulge sensitive medical information.

Filed on Oct. 24 with a federal judge in Washington, the complaint takes aim at the Equal Employment Opportunity Commission, a government agency in charge of so-called wellness programs.

With features like smoking-cessation programs and nutrition counseling, companies tout wellness programs for keeping their workforce healthy and informed.

Employees are sometimes uneasy, however, about filling out the detailed medical questionnaires that participation in such programs requires.

While historically voluntary, the EEOC published a set of final rules on the programs in May that allow employers to offer incentives of up to a third of the annual cost of health insurance for employees if they take part in the wellness programs.

AARP notes that the upshot to these incentives is that now employees who opt not to participate will have their individual health insurances costs doubled or tripled.

A nonprofit that advocates for older Americans, AARP notes that reluctance to divulge sensitive medical information to employers is not without basis.

Indeed the federal law that bars employers from compelling employee-medical exams was borne out concern "about the potential for facilitating employment discrimination and also for giving rise to stigma that exacerbates discriminatory harm to employees with disabilities in the workplace."

Those prohibitions "specifically addressed the abuse of employee medical information in wellness programs, which it [Congress] thought could be used for the purpose of limiting health insurance eligibility or preventing occupational advancement and must be kept confidential,'" the complaint states.

Claiming that the EEOC used to take these concerns seriously as well, the complaint quotes from a brief the agency filed just two years ago in a federal lawsuit against Honeywell.

"The EEOC rightly argued in 2014 that because an employer imposed heavy penalties on employees through a coercive wellness program, employees stood to 'lose the fundamental privilege under the ADA and GINA to keep private information private,'" the complaint states, abbreviating the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act.

A representative for the commission declined to comment on the suit.

By changing the rules now, AARP says the government is abandoning its 15-year commitment "that employee wellness programs implicating confidential medical information are voluntary only if employers neither require participation nor penalize employees who choose to keep their medical and genetic information private."

AARP notes that roughly a third of its 38 million members work or are likely to be employed in the future.

"Additionally, a disproportionate number of older workers have one or more actual 'disabilities,' a record thereof, and/or are perceived as having a disability, and are, therefore, protected by the ADA," the complaint continues. "Older workers are also more likely to have the very types of 'invisible' disabilities — such as mental health conditions — that are likely to be revealed by medical quest."

AARP has typically been supportive of the EEOC's efforts at policing wellness programs.

As the cost of health care rises, businesses have implemented wellness programs to encourage workers to better manage chronic health conditions or take steps toward better health.

Changes to the rules this year represent additional fallout from the new health care law, the Patient Protection and Affordable Care Act.

Though intended to reduce overall health costs, by getting employees to use their health insurance less, AARP sees a dark side to coerced biometric testing for conditions like high blood pressure.

"That information, once revealed, will never be confidential again," the complaint states.

Claiming that its members face "imminent harm flowing directly from the rules," which are slated to take effect in 2017, the group seeks an injunction.

AARP counsel Dara Smith has not returned an email seeking comment on the lawsuit.

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