Obamacare Allows Companies to Punish Fat Employees
Advocates for overweight Americans see wellness programs as thinly veiled fat discrimination

A few months ago, Tracy Raymond, a first-grade teacher in Palm Beach Gardens, FL, discovered that she was too fat for her school. A 50-year-old mother of two, Ms. Raymond has always carried around extra padding, but it never bothered her. “I know I’m heavier than I should be for my height, but I’m not obese,” she says. “I really don’t care.”

If the diet police has its way, she might have to start caring. Because according to her employer, her weight is a big problem—so much so that she was warned that if she didn’t lose weight and lower her cholesterol, either by participating in a wellness program or fixing the problems on her own, her insurance premiums would increase by $50 a month.

This isn’t unique to Palm Beach County.

A 2013 report by ConscienHealth, a consultancy, found that 16 percent of employers require wellness program participation, including medical screenings, for access to full health benefits. Of these, 67 percent set goals for weight and/or other health indicators linked to obesity (weight, blood pressure, cholesterol, diet). But 59 percent said that their companies didn’t cover any evidence-based treatments for obesity, like fitness training, dietician, or medical weight loss clinic.

Penalizing employees for pounds is perfectly legal. Under provisions in the Affordable Care Act, 2014, employers can charge employees an extra 30 percent of the total cost (employer and employee portions) of individual or family health benefits coverage if they don’t meet specific wellness goals, including body mass index (BMI). This is up from 20 percent, which was imposed in 2006 and permitted under the Health Insurance Portability and Accountability Act regulations (HIPPAA). Prior to 2006, employees couldn’t be penalized for missing a wellness target. “You could offer them nominal incentives to engage in activities like participating in a class, but you never could penalize them for actually smoking or not losing weight, or having high blood pressure,” said Karen Pollitz, a senior fellow at the Kaiser Family Foundation, in Washington, D.C.

Although the law requires employers to give employees an alternative way to avoid the penalty if he or she can’t meet the mandated health goal, the employee might still end up spending money. For instance, the employer might set a weight loss goal that the employee still can’t meet, or suggest the worker attend a fitness class. Those who opt out would accrue some financial penalty.

“Employers,” notes Timothy S. Jost, professor emeritus at Washington and Lee University’s School of Law, “like to control the lives of their employees.”
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The underlying thesis is that companies are doing something good by helping employees get into shape—and saving themselves money in health costs.
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In fact, many critics feel that what it really amounts to is thinly veiled fat discrimination.
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Here’s where things get tricky. Although ObamaCare permits these penalties, under the ADA, it’s illegal to force employees to undergo medical exams or answer questions about their health—unless the questions are directly related to their job performance (itself debatable). It only allows medical inquiries and exams that are unrelated to the job if they’re voluntary and part of an employee health program.

This, in turn, begets another question: When is a wellness program voluntary?