Wellness Programs Can't Be Ruse to Ask About Pregnancy

On their face, employee wellness programs may seem well-intentioned: companies seek only to improve the health of workers for their own well-being, with an eye toward holding down healthcare costs, right?

Not so fast, say some consumer groups, including the National Women’s Law Center, which objected to a specific type of questions being included in wellness programs and said so in a filing with the Equal Employment Opportunity Commission (EEOC), which has proposed rules to ensure that wellness programs are voluntary.

The Pregnancy Discrimination Act of 1978 made outright discrimination on the basis of pregnancy status illegal. In generations before the law, it was common for teachers, flight attendants, or women who dealt with the public to see their careers vanish overnight once they became visibly pregnant.

But the law didn’t stop subtle discrimination. Women in part-time jobs still see their hours cut due to pregnancy or the demands of motherhood—a woman in New Jersey just this week reported losing her job as a hotel clerk because she sought accommodations to express milk for her newborn, which is called for under the Affordable Care Act (ACA). So women are justifiably eager to keep their pregnancy histories private, and thus wary of wellness questions that might end up giving employers access to information they are not entitled to have under the law.

The situation presents a quandary, because the ACA calls for offering financial incentives to create wellness programs, as part of the overall focus on prevention. Yet the EEOC wants such programs to be voluntary, not mandatory, which raises questions about how far employers can go in asking questions.

Workers in small companies seem especially concerns, because an employer with only a handful of employees is far more likely to connect responses with an individual worker than a human resources office responsible for thousands of employees. Major insurers who run wellness programs on behalf of employers insist the data are aggregated and employees have nothing to fear, but advocates say women aren’t so sure.

More than a generation after its passage, employers remain ignorant of what the law requires. This spring, the EEOC brought action against a Georgia cosmetics center for firing a woman who made her new employer aware of her pregnancy 2 weeks after she was hired. The cosmetics center fired her, saying she had deceived them when she interviewed for the job. Not so, EEOC said; the law only requires that the woman disclose her pregnancy if she anticipates a need for special accommodation