CLAUSULA DECIMA: OBLIGACIONES DEL CONTRATISTA

What could be wrong with workplace wellness programs? It all depends on your

perspective. To pretend that structures of inequity do not affect health is to falsely separate what goes on in communities from the institutional structures that subtend health outcomes and define health itself. Studies across a spectrum of disciplines including medicine, law, psychology and sociology unanimously establish links between the structures and adverse outcomes to bodies and minds – in other words, able-ism, racism and discrimination enact real harm to health.

I labor in the trenches of dismal employment statistics for people with disabilities who are able to work and want to work. In 2014, “[l]ess than 30 percent of working-age Americans with disabilities participate[d] in the workforce, compared to over 78 percent of non-disabled Americans.”97The rate of disability in the U.S. workforce is approximately 5.3%.98 The unemployment rate for people with disabilities, 12.5 percent in 2014, was twice the rate for individuals with no disability, 5.9 percent.99Individuals with disabilities face impediments to employment beginning with access to education and training all the way through hiring and

97

Comments on the ADA Proposed Rule, Amendments to Regulations Under the Americans with Disabilities Act, RIN 3046-AB01 by the Consortium for Citizens with Disabilities (June 19, 2015), citing Senate Committee on Health, Education, Labor and Pensions, Fulfilling the Promise: Overcoming the Persistent Barriers to Economic Self-Sufficiency for People with Disabilities, Majority Committee Staff Report 2 (Sept. 18, 2014), at http://www.c-c- d.org/fichiers/CCD-comments-on-EEOC-NPRM-re-wellness-programs-ADA.pdf [hereinafter CCD Comments].

98

Senate Committee on Health, Education, Labor and Pensions, Fulfilling the Promise: Overcoming the Persistent Barriers to Economic Self-Sufficiency for People with Disabilities, Majority Committee Staff Report 2 (Sept. 18, 2014); See also, Sarah von Schrader & Valerie Malzer & Susanne Bruyère, Perspectives on Disability Disclosure: The Importance of Employer Practices and Workplace Climate, Employ Respons Rights J (2014) 26:237–255 20 July 2013 (“employment rates for people with disabilities remain significantly lower than those of non-disabled individuals, with the employment rate for individuals with a disability being 33.4%, compared to 75.6% for their non-disabled peers.”); see also, U.S. Bureau of Labor Statistics: Persons with a Disability: Labor Force Characteristics Summary, June 16, 2015 (2014: 17.1 % of individuals with a disability and 64.6 % of those without a disability employed.)

99

U.S. Bureau of Labor Statistics: Persons with a Disability: Labor Force Characteristics Summary, June 16, 2015.

promotion.100 These barriers are compounded by race and gender. While women make up approximately 50.8% to men’s 49.2% in the U.S. population as a whole, as well as a higher proportion of people with disabilities, men are disproportionately represented among people with disabilities in the workforce.101 The prevalence of a disability is also higher for blacks and whites than Hispanics and Asians.102“Although the unemployment rate was the same for men and women with disabilities in 2014 (12.5 percent), …[a]s is the case among those without a disability, the unemployment rates for those with a disability were higher among blacks (21.6 percent) and Hispanics (16.1 percent) than among whites (11.2 percent) and Asians (8.6 percent).”103

The barriers and disparities contribute to current employee reluctance to disclose

disabilities or health conditions and to participate in workplace wellness programs. But it is not only employees’ attitudes and experiences; employers themselves should understand this hesitation. In 2007, an employer trade group-sponsored survey documented that a majority of employers still associate shame and stigma with disclosure of mental illness and believe factors that impede employees accessing treatment include lack of access to treatment, lack of faith in the efficacy of treatment, and a belief of negative consequences if employers find out they are in treatment.104 Despite studies demonstrating that robust workplace screening and treatment for mental illnesses, such as depression, save employers money in the long run, obstacles to their

100

See, e.g., CCD Comments, citing EEOC Guidance, General Principals.

101

U.S Bureau of Labor Statistics, Table 1.

102

U.S. Bureau of Labor Statistics: Persons with a Disability: Labor Force Characteristics Summary, June 16, 2015

103

Id.

104

Innerworkings: A Look at Mental Health in Today’s Workplace, 2007 survey report by Partnership for Workplace Mental Health, American Psychiatric Foundation and Employee Benefit News, at

comprehensive implementation continue.105 They include a persistent belief by employers that “their return on investment is unclear,” and employees’ reluctance to disclose a stigmatizing condition.106

Moreover, ample evidence demonstrates that discrimination in the workplace has yet to be abated.

Historically, many employers asked applicants and employees to provide

information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities – particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer and mental illness – despite their ability to perform the job. The ADA’s provisions concerning disability-related inquiries and medical

examinations reflect Congress’s intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs.107

The ADA regulations and EEOC guidance struck a delicate balance of these interests, and the GINA regulations followed suit. The scales should not now be tipped back towards powerful employers. Even though these rules and other laws protect privacy, in part by requiring that data be kept confidential and presented in aggregate form, privacy concerns remain. “If [an] employer will see aggregated responses, how big is the sample size? Is there any way you could be

identified—say, if you’re the only obese employee at a small firm?”108

105

Workplace Depression Screening, Outreach and Enhanced Treatment Improves Productivity, Lowers Employer Costs, Sept. 26, 2007, Journal of the American Medical Association, National Institutes of Health’s National Institute of Mental Health (NIMH) at http://www.nimh.nih.gov/news/science-news/2007/workplace- depression-screening-outreach-and-enhanced-treatment-improves-productivity-lowers-employer-costs.shtml

106

Id. (“Previous studies have shown that employees who are depressed are less productive and are absent more often [and] that organized screening and enhanced depression treatment can significantly improve health.... Enhanced and systematic efforts to identify and treat depression in the workplace significantly improves employee health and productivity [and reduce absenteeism], likely leading to lower costs overall for the employer.”) However, it is axiomatic that forcing or coercing treatment is destined to fail – support for voluntary treatment, coupled with the assurance that no negative consequences will result, are most effective.

107

CCD Comments, citing EEOC Guidance.

108

Kara Brandeisky, The Surprisingly Personal Health Questions Your Employer Can Ask You, Time November 19, 2014, http://time.com/money/3579354/health-risk-assessment-questionnaire/; See also, Anne Fisher, Do wellness programs really save companies money?, Fortune, Jan. 29, 2014, at http://fortune.com/2014/01/29/do- wellness-programs-really-save-companies-money/

Sarah von Schrader, a senior researcher with the Employment and Disability Institute at Cornell University explained, “In one recent study of 600 people with disabilities, roughly half involving mental health, about a quarter of the respondents said they had received negative responses to revealing their problems – such as not being promoted, being treated differently, or in some cases, being bullied.”109 Based on this information, employers should spend energy on “reducing the likelihood of negative consequences for disclosure,”110 as opposed to imposing negative consequences themselves.

While, on the one hand, disclosure of a disability “can assure that employees receive appropriate workplace accommodations, and can help employers respond more effectively to diversity and inclusion initiatives aimed at increasing the hiring and retention of individuals with disabilities,” the outcome of this action is not always productive or favorable.111 Disclosure of a disability to a current or potential employer may “result in negative employment consequences for employees, such as lowered supervisor expectations, [lack of respect,] isolation from co- workers, [a decrease in job responsibility,] and increased likelihood of termination.”112

Increasingly, employers are pushing the envelope of mandating such disclosures – requiring employees to answer questions on HRAs that pry deeply into the individual’s medical history and even their ancestry – e.g., family history of cancer, “discussed possible future transplant,” membership in a “social group,” or previous medical claims over a certain dollar amount, in order to access health insurance benefits.113 These employer-mandated, gatekeeping questionnaires also delve into more than just the medical corners of employees’ lives, including

109

Schrader et al.,Respons Rights J (2014) 26:237

110 Id. 111 Id. 112 Id. 113

Appendix 15 sample HRA; Brandeisky, The Surprisingly Personal Health Questions Your Employer Can Ask You.

but not limited to their: marital status, pregnancy plans, and social activities such as alcohol consumption, tobacco use, or extreme sports.114Mandating disclosure without first protecting against not only discrimination, but stigmatization, is putting the cart before the horse in employment practices. A substantial number of workers with mental illness do not feel safe disclosing their diagnoses in the workplace, and these fears are well founded.115

Additionally, the rise in popularity of outcomes-based or health-contingent workplace wellness programs,116 condoned and even encouraged by the Affordable Care Act, has

emboldened employers to reward, punish, ostracize117 and even discriminate.118 Michigan Law Professor Samuel Bagenstos, former U.S. Department of Justice Disability Rights Section chief, is skeptical about the efficacy of workplace wellness programs.

For years employers have offered worksite wellness programs, ranging from newsletters or gym memberships to high stakes incentive programs that change your insurance premiums by thousands of dollars if you lose weight, reduce your blood pressure or blood sugar levels, quit smoking or achieve some other health outcome. Although no scientific evidence has yet shown that such programs actually improve, health – and a number of recent studies in fact suggest that high-stakes incentives merely shift, and do not reduce, health care costs – the       

114

Judith Feder and Samuel R. Bagenstos, Beware: 'Wellness' May Be Hazardous to Your Health, May 11, 2015, at http://www.huffingtonpost.com/judith-feder/corporate-wellness-programs_b_6846350.html

115

Alina Tugend, “Deciding Whether to Disclose Mental Disorders to the Boss,” New York Times, November 14, 2014, “‘We’re seeing changes in the broader culture, but we’re not seeing it in the workplace,’ said Mary Killeen, a senior research associate at the Burton Blatt Institute at Syracuse University.”

http://www.nytimes.com/2014/11/15/your-money/disclosing-mental-disorders-at- work.html?emc=edit_tnt_20141114&nlid=69639673&tntemail0=y&_r=3 116

Brandeisky, Time, (“Outcomes-based wellness programs are growing but not yet widespread. And only 7% of employers say that employees with health risks must complete some kind of wellness program or face a penalty, according to Kaiser.”) This is not a trend that we should want to see increase.

117

Id. (“Your employer can set health-related goals for you. For example, if you’re overweight, your employer can offer a financial incentive for you to lower your BMI. As part of the Affordable Care Act, those financial incentives can be worth 30% of the total cost of plan costs, up from 20% before health reform.”)

118

See, e.g., Health Plan Penalty Ends at Penn State, Natasha Singer, New York Times, Sept. 18, 2013: (“After weeks of vociferous objections by faculty members, Pennsylvania State University said on Wednesday it was suspending part of a new employee wellness program that some professors had criticized as coercive and financially punitive. In particular, the university said it was suspending a $100 monthly noncompliance fee that was to be levied on employees who declined to fill out an online questionnaire. The form, administered by WebMD Health Services, a health management company, asked employees for intimate details about their jobs, marital situation and finances. It also asked female employees whether they planned to become pregnant over the next year.”)http://www.nytimes.com/2013/09/25/business/rules-sought-for-workplace-wellness-

Affordable Care Act makes an exception to its basic ban on varying premiums based on health status for outcomes-based wellness programs.119

Notwithstanding this Congressional concession to employers, “[r]ecognizing the risk that unhealthy employees may be punished rather than helped by such programs, the [ACA] also forbids health-based discrimination.”120 While promoting health and healthier lifestyles should be commended, mandating participation – or worse, requiring improved outcomes (by coupling them with incentives and penalties) – in workplace wellness programs for working families is not good business and may diminish opportunities for many workers, particularly those with

disabilities. One recent study concluded, “evidence suggests that savings to employers may come from cost shifting, with the most vulnerable employees—those from lower socioeconomic strata with the most health risks—probably bearing greater costs that in effect subsidize their healthier colleagues.”121

The history of civil rights legislation in this country demonstrates the acknowledged need to break down institutional barriers for potential workers based on their sex, race, color, religion, ethnicity, national origin, marital status, age, sexual orientation, gender and disability. The exceptions under the ADA requiring employers to make reasonable modifications and accommodations for current and prospective employees with disabilities remain critically important and must be maintained in the context of wellness programs in the workplace. For some working individuals with disabilities, their use of a device to assist with mobility or

119

Feder and Bagenstos, Beware: 'Wellness' May Be Hazardous to Your Health (citing RAND study: Mattke, Soeren, Hangsheng Liu, John Caloyeras, Christina Y. Huang, Kristin R. Van Busum, Dmitry Khodyakov and Victoria Shier. Workplace Wellness Programs Study: Final Report. Santa Monica, CA: RAND Corporation, 2013; http://www.rand.org/pubs/research_reports/RR254, also available in print form; and citing Wellness Incentives In The Workplace: Cost Savings Through Cost Shifting To Unhealthy Workers Health Aff March 2013 32:3468- 476;http://content.healthaffairs.org/content/32/3/468.full.html.)

120

Jill R. Horwitz, Brenna D. Kelly and John DiNardo, Wellness Incentives In The Workplace: Cost Savings Through Cost Shifting To Unhealthy Workers, Health Aff March 2013 32:3468-476;

http://content.healthaffairs.org/content/32/3/468.abstract#aff-1

121

hearing, the presence of a service animal, or their physical appearance can belie the existence – or perceived existence – of some impairment or other characteristic upon which stereotypical beliefs and stigma can attach. For many others, the presence of a disabling condition or even a health factor or concern may be unknown to their employer. Several current federal and state laws protect employees’ confidentiality, and the right to privacy is as American as apple pie. Simply put, the importance of protecting this right should give employers sufficient cause to temper incentives and penalties requiring participation and disclosure. Education, rather than coercion, should be freely offered; participation made easy, and opting out always permitted.

Employment discrimination on the basis of several protected categories, including disability, has not yet been relegated to a distant, but painful and destructive memory in American history. In fact, our society is not yet colorblind or ability blind. Employers, like everyone else, can fall victim to prejudice, stereotype and even patronizing, big brother tactics. Given this, employers should take care when endeavoring to incentivize to “control” their employees’ behavior outside the workplace, even when these actions may be well intentioned. What employer advocates label as “lifestyle choices” may, in fact, amount to circumstances over which employees have little or no control. Moreover, privacy and disability rights laws protect against not only outright discrimination and disparate treatment, but against stigmatization and isolation based on a characteristic, condition or disability. Certain chronic, serious, and

congenital conditions occur with more frequency in different racial and ethnic groups. Lupus, sickle cell anemia, eczema, and hypertension, to name a few, have higher incidence among people who trace some African-American ancestry.122 But racism, segregation and

discrimination – rather than the circumstance of birth, or biology, may play a bigger contributing

122

See, e.g., CDC NCHS Data Brief Number 107, October 2012, Hypertension Among Adults in the U.S. 2009-2010; http://www.cdc.gov/nchs/data/databriefs/db107.htm

role in health than popular wisdom has allowed123 – even in conditions such as obesity124 or asthma.125

Incontrovertible research also shows that income inequality persists and financial stress is one of the largest contributors to poor health in America.126 One undisputed source of anxiety and stress in the U.S. is personal financial circumstances. A study by the American

Psychological Association in 2008 found that 8 in 10 people identified money and the economy as significant sources of stress, followed closely by, inter alia, work, family health problems, personal health concerns, and job stability.127

According to the Federal Reserve Board, in 2008 Americans amassed over 2.5 trillion dollars in personal consumer debt – an average of $8,565 per household…. This debt is in part due to… higher costs for education loans, unregulated home mortgage lending practices and a lack of increase in inflation-adjusted income among many employees. Thus, it is widely recognized that more and more workers in the U.S. are experiencing financial difficulties.128

Disparities in race and gender only exacerbate the income inequality gap.129 In addition, employees’ use of employee assistance programs (EAPs) is at record high utilization.130

“Financial problems have clear negative consequences on worker health and job performance.

123

David R. Williams, Michelle Sternthal, Harvard University, Understanding Racial-ethnic Disparities in Health: Sociological Contributions, Journal of Health and Social Behavior , Nov. 2010vol. 51 no. 1 supp S15-S27 124

See, e.g., Igor Ryabov, The Role of Residential Segregation in Explaining Racial Gaps in Childhood and Adolescent Obesity Youth & Society 0044118X15607165, first published on September 23, 2015.

125

Williams and Sternthal, Understanding Racial-ethnic Disparities in Health: Sociological Contributions.

126

See, e.g., Employee Personal Financial Distress and How Employers Can Help, Research Works Partnership for Workplace Mental Health, Vol. 1, Issue 1 February 2009,

http://www.workplacementalhealth.org/Publications-Surveys/Research-Works/Employee-Personal-Financial- Distress-and-How-Employers-Can-Help.aspx?FT=.pdf

127

Id., citing American Psychological Association (2008) Economy and Money Top Causes of Stress for

Americans, June 4, 2008, available at http://apahelpcenter.mediaroom.com/index.php?s=pr ess_releases&item=51

128

Id., citing Morgenson, G., Given a shovel, Americans dig deeper in debt, New York Times, July 20, 2008.

129

See, generally, Joan Acker, Inequality Regimes: Gender, Class, and Race in Organizations, GENDER & SOCIETY, Vol. 20 No. 4, August 2006 441-464

http://intergender.net/OLD_IG/IG_ARCHIVE/www.sagepub.com/oswcondensed/study/articles/05/Acker.pdf

130

Employee Personal Financial Distress and How Employers Can Help, at 4, citing Employee Assistance Society of North America EASNA Survey Shows Increase in EAP Utilization, Press Release December 8, 2008; available at http://www.easna.org/news.html.

Workers with financial distress typically report poorer overall health.”131

Conversely, when companies provide financial education initiatives in the workplace,