Next year, they may become even more contentious. Two recent court rulings have cast uncertainty over what is the appropriate limit for financial incentives that employers can offer workers to participate in programs that require clinical testing or disclosure of personal health data. The dollar amount is subject to debate because it raises questions about when the incentives become so high that employees feel they don’t have a choice about participating.
As a result, workers may find programs offer smaller incentives, consultants say. Also, programs might give employees options for qualifying for those incentives — a choice, for instance, between undergoing a medical exam or completing online health education modules.
About 4 in 10 employers participating in an informal survey by benefits firm Mercer said “they really were not sure what they would do,” said Steven Noeldner, its senior consultant in total health management specialty practice. “Some are modifying … others are taking a wait-and-see-attitude.”
The Cleveland Clinic’s version is more extensive than most, said Dr. Bruce Rogen, chief medical officer for the effort. He described it as a “population health program,” with differing goals for workers who have chronic diseases like diabetes versus those who don’t.
Full participation, which may mean losing weight, keeping blood sugar levels in check or hitting a gym at least 10 times a month, can save workers 30 percent in insurance premiums. That could be as much as $1,443 a year.
“Part of what makes the plan work is the fact we can offer that benefit discount,” Rogen said.
That 30 percent amount is the ceiling set in a 2016 Equal Employment Opportunity Commission (EEOC) rule for what an employer can offer.
But it’s also the point that leads critics to question when incentives become significant enough that employees no longer feel that participation is voluntary.
“You and I can look at the same incentive and you will find it’s truly voluntary and I would say, given my financial circumstances, I feel I’m being compelled,” said Tom Luetkemeyer, an attorney specializing in employment law at Hinshaw & Culbertson in Chicago.
Shortly after the EEOC’s guidance was issued, the AARP challenged it in court, arguing that workers who did not want to provide medical information could feel coerced to do so because not participating would cost them substantial sums, ranging from hundreds to thousands of dollars.
In his first ruling, D.C. Circuit Court Judge John Bates noted that the EEOC had failed to provide justification for how it settled on that percentage. He also pointed out that 30 percent of a worker’s health insurance costs could be “the equivalent of several months’ worth of food for the average family, two months of child care in most states, and roughly two months’ rent.”
Bates ultimately ordered the 30 percent limit vacated as of Jan. 1, 2019, after the EEOC said it would not produce that justification or a new number until 2021.
Employers now putting together next year’s health benefit programs don’t have specific rules to follow.
The advice they are receiving from benefit consultants ranges widely, from “drop all incentives and penalties” to “stay the course.”
Few expect employers will outright stop offering wellness programs because they hope the programs will hold down health costs by getting workers to take steps to improve their well-being. Critics, however, point out that studies show little evidence that workplace wellness programs achieve these goals.
The ruling does not affect some wellness program efforts, such as offering financial incentives for going to the gym or walking a certain number of steps per day. Substantial financial incentives to get people to quit tobacco are also not covered by the ruling, so long as there is no medical test required to check for nicotine use.
But “you can’t fine them for not getting their weight down, because then you have to measure their weight and that becomes clinical,” said Al Lewis, a frequent critic of workplace wellness programs who runs a company that offers an alternative.
Some employers say they will stick with their existing programs — even if they hit the 30 percent level — because the EEOC is unlikely to challenge those that stick with the rescinded percentage until new rules come out.
The Cleveland Clinic’s Rogen, who credits the wellness program for holding medical costs almost flat for the past five years, said clinic officials plan to leave it at that level next year, despite the uncertainty.
Not all benefit consultants would agree with that choice.
“The way we interpret the ruling is that financial incentives that relate to physical exams, including questions about health history, would not be allowed starting Jan. 1,” said Noeldner, of Mercer.
Others suggest that is taking the judge’s ruling too far. After all, the Affordable Care Act provides a precedent for the 30 percent threshold — and the EEOC may well come back with a rule that reaffirms that amount. The ACA included a provision that raised the limit on health-contingent wellness incentives to that amount.
“People may be overreacting to this by saying with these rules null and void, we are out in the Wild West,” said Todd Hlasney, senior vice president and director of health risk solutions at Lockton Companies, a benefits consultancy. “We are advising clients to be more conservative … but don’t panic and say [you] can’t do anything because of EEOC.”