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Wellness programs could lead to workplace discrimination

Some California residents may be employed at places that promote wellness for their employees. While this can be positive, it may also leave employees vulnerable by requiring them to share health information that their employers may later use to discriminate against them.

Because people are often hesitant to share this information, employers may create incentives for employees to complete health risk assessments that include physicals and detailed questions about mental and physical health. When the incentive is a small item, this is not a problem, but in some cases, employers may try to deny their employees access to health insurance if they refuse. Furthermore, there are cases in which employees have faced discrimination after employers have learned that they had diabetes or other medical conditions.

The Equal Employment Opportunity Commission has insisted that the release of this information must be voluntary, and in 2014, it filed lawsuits against employers who retaliated against employees by firing them, penalizing them financially or taking away their health benefits. However, some employers are now pressuring the government to exempt wellness programs from discrimination laws. They base this on an exception allowed by the Affordable Care Act. However, the ACA does have certain restrictions on that exemption. Wellness programs associated with the exemption must meet certain standards, and furthermore, the broader protection against unnecessary medical questions still applies.

Those who feel they have been discriminated at work as a result of an illness or disability may want to contact an attorney. Whether or not this came in the guise of setting up a wellness program, employers are not permitted to compel their employees to discuss their health and then act against their employees based on that information. Discrimination may include demotion, firing, denial of promotion, denial of benefits or other actions.

Source: Huffington Post, "Beware: 'Wellness' May Be Hazardous to Your Health", Judith Feder and Samuel R. Bagenstos, March 11, 2015

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