Rules Sought for Workplace Wellness Questionnaires

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Representative Louise Slaughter hopes to prevent discrimination based on intimate health data.

A federal lawmaker is asking the Equal Employment Opportunity Commission to investigate employer wellness programs that seek intimate health information from employees, and to issue guidelines preventing employers from using such programs to discriminate against workers.

The request, by Representative Louise M. Slaughter, Democrat of New York and a staunch advocate for health privacy rights, came a few days after Pennsylvania State University suspended part of its new employee wellness program that had drawn objections from faculty members.

"What happened at Penn State was appalling to me," Ms. Slaughter said in an interview on Tuesday, referring to the university's requiring employees to pay a monthly surcharge of $100 if they did not fill out detailed health risk questionnaires.

Called Take Care of Your Health, the Penn State program initially required employees, including faculty and staff members, to fill out the questionnaires — which asked about workplace stress, marital problems and women's pregnancy plans — or pay the surcharge. After faculty members complained that the program seemed coercive and invaded their privacy, the university suspended the penalty.

Ms. Slaughter, who made her request on Monday in a letter to the commission, is the author of the Genetic Information Nondiscrimination Act, a federal law that protects Americans against discrimination in employment or health insurance based on their genetic information.

"While the employer wellness program has recently suspended this fee, their plan still raises concerns about the type of information that can be collected through wellness programs and the definition of 'voluntary' participation," she wrote. "It is my strong hope that E.E.O.C. promptly drafts subregulatory guidance stopping this type of abuse and ensuring strong nondiscrimination protections for employees in wellness programs."

It is legal for employers to use financial incentives to encourage workers to fill out health risk assessment forms as long as that reward is based on completion of a wellness form and not tied to specific questions related to an employee's health status.

In fact, employer use of financial inducements is likely to increase under new wellness rules, scheduled to take effect in January as part of the Affordable Care Act. The rules allow employers to offer incentives of up to 30 percent of health coverage costs to employees who complete participatory wellness programs like health risk questionnaires, or biometric assessments like body-fat percentage measurements.

In her letter, however, Ms. Slaughter raised questions about whether the lack of federal guidelines on the design of such questionnaires could put employees at risk for discriminatory practices.

As a hypothetical example, a workplace wellness questionnaire that asked female employees questions about their pregnancy plans might cause a disproportionate number of women to decline to participate in the program, said Matthew T. Bodie, a professor at Saint Louis University School of Law. If that employer also fined its employees for not filling out the questionnaire, its wellness program could potentially have a discriminatory financial impact on that company's female employees, he said.

"Down the road, the law could get a little firmer on this if there is a consensus that employers are going overboard in what they are asking," said Professor Bodie, who specializes in labor and employment law.

The Equal Employment Opportunity Commission had a special meeting in May on wellness programs in which its legal expert concluded that the agency should issue guidance on the potential intersection of wellness programs and federal antidiscrimination laws. In particular, the expert said, the agency should clarify the meaning of "voluntary" employee participation.

But it has yet to issue that guidance, prompting Ms. Slaughter's letter. "I'm deeply upset with the E.E.O.C. for delaying this," she said.

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