President Donald Trump and House Speaker Paul Ryan have laid out a three-step process to allegedly “repeal and replace” the misnamed Affordable Care Act (ACA) or “Obamacare.” The much-lamented American Health Care Act is step one, regulatory reform is step two, and another piece of legislation would follow as step three. As it turns out, a key measure likely to be included in step three would actually expand a controversial program in Obamacare — subverting employees’ genetic privacy rights and enabling employers to gut their paychecks if they don’t participate in “workplace wellness” programs.
The “Preserving Employee Wellness Programs Act” (H.R. 1313) would allow companies to force employees to undergo genetic testing or risk paying a penalty of thousands of dollars, and let employers see that genetic health information. This law builds upon Obamacare’s expansion of workplace wellness programs while undercutting a 2008 law which protects genetic privacy.
“What this bill would do is completely take away the protections of existing laws,” Jennifer Mathis, director of policy and legal advocacy at the Bazelon Center for Mental Health Law, told Stat News. In particular, the genetic privacy and nondiscrimination protections in the law known as GINA, and in sections of the 1990 Americans with Disabilities Act, “would be pretty much eviscerated.”
These protections would be undercut in order to empower businesses to strengthen their workplace wellness programs. Rather than undercutting Obamacare, this law would actually build upon a controversial impact of the ACA.
Beginning in 2014, Obamacare increased the financial incentives that employers are allowed to offer workers for participating in workplace wellness programs and achieving results, Reuters reported in 2015. Big business lobbied for these incentives, which can be levied in the form of rewards or penalties — up to 30 percent of health insurance premiums, deductibles, and other costs, and even more if the programs target smoking.
Among the two-thirds of large companies using these incentives to encourage participation in workplace wellness programs, almost a quarter are imposing financial penalties on those who opt out. Some companies even link financial incentives to specific goals such as losing weight, reducing cholesterol, or keeping blood glucose under control. The number of businesses imposing such outcome-based plans was expected to reach 46 percent in 2015.
While the general idea of being able to work out on the company’s dime may sound nice, workplace wellness programs have no proven record of achieving results. Worse, the vendors involved in these programs make $8 billion in annual revenue, and have a record of cutting corners on “research” to prove their effectiveness.
At some companies, employees who declined company-specified medical screenings paid as much as $500 more per year in premiums, and lost out on company contributions of $250 to $1,500 a year. Many companies allegedly profit over these penalties.
When health insurance is linked to employment — as is so often the case — employers can argue that employee health is in their interest, and a legitimate way to curb the costs of their health care. But just how much should businesses know about their employees? If the new Republican bill were to become law, employers would end up knowing more about employees than employees know about themselves.
How? By genetic testing. In the wake of the Human Genome Project, scientists can use an individual’s DNA to determine his or her likelihood for certain diseases (which a person may or may not be aware of), in addition to all sorts of biological information which should arguably be kept private.
The 2008 genetic law currently prohibits a group health plan (the kind most employers have) from asking, let alone requiring, someone to undergo a genetic test. It also prohibits requiring such tests for “underwriting purposes,” which include basing health insurance deductibles, rebates, rewards, or other financial incentives on completing a health risk assessment or health screenings.
Finally, any genetic information acquired can be provided to the employer only in a form which makes it difficult for employers to match an individual to his or her genetic profile.
But under H.R. 1313, none of these protections for health and genetic information would apply to workplace wellness programs so long as they complied with Obamacare’s limited requirements for such programs. That’s right — this measure which would be part of an “Obamacare replacement” actually uses Obamacare to determine which workplace wellness programs could enable employers to demand their employees undergo genetic testing and health screenings.
This isn’t “replacing Obamacare.” It isn’t even “Obamacare-Lite.” This is “Obamacare-Heavy.”
And in another terrifying sign of how progress gets done in Washington, a bill expanding on the work of a Democratic president was approved by a House committee last Wednesday, with all 22 Republicans supporting it, and all 17 Democrats opposed. Obamacare is happening all over again, but this time Republicans are pushing it, against Democrat objections.
This is how it worked under the Democrat president. Obamacare allowed employers to charge employees up to 30 percent (and sometimes even 50 percent) more for health insurance if they decline to participate in “voluntary” programs. Then the Obama administration’s Equal Employment Opportunity Commission (EEOC) issued rules last year saying that a workplace wellness program counts as “voluntary” even if workers have to pay thousands of dollars more in premiums and deductibles if they don’t participate.
But this wasn’t enough for the business community. The American Benefits Council testified that current privacy limitations on genetic and other forms of health testing “put at risk the availability and effectiveness of workplace wellness programs,” depriving employees of benefits like “improved health and productivity.” The council represents Fortune 500 companies and other large employers which provide employee benefits.
Again, the value of these workplace wellness programs is exceedingly tenuous, but the benefits to employers are not. Obama and Obamacare gave employers enormous power on this, and now one part of the Republican Congress’ “Obamacare replacement” plans to give them even more.
Worse, this bill would put genetic testing firmly on the table — allowing employers to “ask for” a “voluntary” participation of employees, which they could enforce by penalizing anyone who refused. H.R. 1313 would not only empower employers even more than Obamacare, but it would enable them to effectively demand the most private and sensitive type of information imaginable — an employee’s DNA.
It makes sense for employers to have a stake in the health of their workers — but does that justify this kind of power?