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The testimonies from 3 EEOC commissioners were dutifully neutral but signaled that employers should not hold their breath awaiting clarification about whether EEOC rules would remain at odds with ACA rules. On the one hand, the Commissioners acknowledged that “confusion persists” and that “it is well within our power as regulators to give meaning to the undefined term ‘voluntary’ in the ADA.” On the other hand, Commissioner Lipnic noted that her goal for the day's hearings was to “find that there are points of consensus on which we can issue strong and clear guidance.” Lipnic also testified that the May 8, 2013 hearing prompted people to immediately ask “whether this meant the Commission was poised to take imminent action with respect to guidance on wellness programs, or that it had even made a decision to undertake any such effort at all. Sitting here this morning, at least as far as I am aware, the answer is ‘no.’ ”
Testifying as “a management side employment attorney,” Leslie Silverman noted that the “Administration's position in strong support of wellness programs within employer-sponsored health care is pretty clear.” In reference to the lack of guidance from EEOC on what the voluntary standard means in practice, Silverman testified that this “has left employers and plan sponsors in a very grey, and dare I say, frustrating area.” That the Commission articulated no urgency to clarify what it admits are incongruent rules makes Silverman's closing admonishment, given she is a former EEOC vice chair, all the more significant. Per the fact that “the Commission has failed to articulate with specificity its position on a number of the important issues raised this morning,” said Silverman, “I am concerned that if the Commission fails to do so, or worse yet, adopts a position that is at odds with the rest of the Administration, the EEOC's credibility may suffer and its relevance in this important national debate may indeed be lost.”
Voluntary is in the Eye of the Beholder
Health coaches often try to put the conflict participants are feeling into perspective by asking them to rate how important they feel it is to make the change they are considering and also to rate their ability to make the change. I have little doubt the EEOC is feeling the pressure from employers to provide guidance and would rate the importance of taking action as high. As much as Commissioner Lipnic said no action is possible, she also said “I feel it is our duty, where possible, to let the regulated community and all interested stakeholders know exactly what our positions on these important questions are.” And there is the rub. Will it be possible to satisfy interested stakeholders? If, as noted above, commissioners such as Lipnic are awaiting consensus from the divergent stakeholder views on both sides of this issue, as were represented extremely well on May 8, I'd venture they would need to rate their ability to act as relatively low.
The first articles I wrote concerning how hard it is to strike a balance between individual and social responsibility for health were published in 1993 4 and 1994. 5 What was called “risk rating” in the 1990s is now commonly called “outcomes-based” incentives, but the debates were the same then and likely will remain the same for years to come. How can we increase accountability for unhealthy practices while at the same time avoiding discriminating against those who are more vulnerable or fall ill without volition? The final rules related to the ACA Wellness Provision are a valiant start to addressing the validity of both of these concerns. Still, the inordinate focus on whether achieving a health standard is fair or discriminatory distracts from the much more important issue—whether the programs in which these incentives occur are “reasonably designed” to improve health. Most who debate the voluntariness standard start with a question about the amount of the financial incentive.
Some view a $50 per month health premium differential as a helpful nudge to advance employee wellness while others find it extremely coercive. In my experience, a worksite culture bestows powerful meaning onto such policy decisions. An organization with a robust history of supporting employee health improvement, with conscientious policies that make healthy choices the easy choices at work and that communicates clearly about their wellness program's goals and objectives, will instill a perception of “voluntariness” that is altogether different from an organization lacking in the same.
Those of us who have toiled in the health promotion field for many years are sharing a common observation about the new attention the ACA is bringing to wellness. Wellness incentives are being misconstrued as the wellness program. I recently wrote a rebuttal regarding a wellness program study published in Health Affairs that committed this increasingly common error. 6
Solving the problem of how best to balance individual versus social responsibility for health will remain a one-sided argument with little room for compromise if the focus is on the use of individual incentives. If employees live or work in an unhealthy environment and feel they are being penalized for being unhealthy then, of course, discrimination likely will be felt. The best way to balance individual and social responsibility for health is to, well, actually balance it. Employers intent on increasing employee engagement by the use of incentives understand that incentives do not improve health outcomes. Indeed, experts have offered a fulsome description of what constitutes a “reasonably designed” wellness program that is one of the prerequisites to the use of health contingent incentives. 7 To wit, it is the programs that the incentives promote, and the healthy culture in which incentives occur, that will lead to better health outcomes.
Footnotes
Author Disclosure Statement
Dr. Terry declared the following potential conflicts of interest with respect to the research, authorship, and/or publication of this article: Dr. Terry is a senior executive for a national wellness company. The author received no financial support for the research, authorship, and/or publication of this article.