Thursday, November 19, 2015

Employee Wellness Technology: Cool and Risky

It should come as no surprise that one of us here at the Navigator has an Apple Watch.  (Hint: It’s Kate.) Although everything about the watch pleases its owner, she is a particular fan of the Activity App that tracks calorie burn and heart rate during workouts. Knowing those things is an important part of any health program, but imagine how much better your health program could be if your fitness device was tuned to your body chemistry and DNA, and could make personalized recommendations to help meet health goals. 
It now exists.  Newtopia has arrived, and according to its marketing claims, promises to lower employer health care costs by integrating fitness trackers and employee DNA through “genetic engagement.”  Newtopia claims that by analyzing a saliva swab containing an employee’s DNA, it can provide personalized coaching and curate “peer-to-peer social networking” to improve employee health  and lower employer health care costs.
Wait, what?  Lots of us would love to know how to improve our fitness levels, but Newtopia intends do this on behalf of employers.  Use of employee genetic information in a wellness program creates a number of risks and legal issues. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requiring applicants and employees to turn over genetic information about themselves or family members.  As an exception to that overall prohibition, GINA allows employers to obtain genetic information for a wellness program, but only if the information is gathered as part of wellness services that are reasonably designed to promote health or prevent disease under a new proposed rule by the EEOC.
Remember that employers cannot make wellness programs (like Newtopia’s) mandatory.  The EEOC is very interested in this topic, and has recently taken action to prohibit employers from requiring employees to sign up for wellness programs.  Last year, the agency brought a motion for an injunction in such a case, and this spring, it proposed a new rule setting the limits for wellness program incentives an employer program can offer. 
There are other considerations employers should keep in mind as they evaluate wellness-related technology and other aspects of their programs:
  • The ADA applies to wellness programs. Employers must not threaten, intimidate or coerce employees in connection with wellness programs and cannot discipline employees for failure to achieve particular wellness outcomes.  The EEOC is explicit that “individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.”
  • Employees might consider DNA-gathering by their employer to be a violation of their privacy, particularly if the employer itself, and not just a third-party vendor, has access to the employee’s information.  86% of employers are concerned about an increase in employee privacy issues, and wellness programs can be the source of such issues.  Intrusive programs can also have an impact on employee morale.
  • The Affordable Care Act encourages employers to offer wellness programs, but offering a wellness program does not require an employer to gather or use employee health information. Employee health information gathered from any source, for any reason, must be kept separate and secure.  Information (DNA-based or otherwise) collected in connection with a wellness program should, whenever possible, be kept by the wellness program vendor and inaccessible to the employer.  If the information is inaccessible, there is less risk of violations of GINA, the ADA, or privacy. However, the benefits of using a vendor to gather and maintain employee health information can be outweighed by the risks if the vendor does not take specific cybersecurity measures to protect the information.
Health care costs are rising at an unprecedented rate.  Employers want to contain these costs. Wellness programs are one way of doing so, and technology can be an important (and cool) part of wellness programs. As with anything in the employer-employee relationship, however, there are compliance issues and legal risks that must be evaluated.  Is there an app for that? 

Posted by Kate Bischoff