Can Your Employer Penalize You for Being Fat?

NEW YORK (MainStreet)—The announcement this spring that CVS Pharmacy will require its employees who participate in its health insurance plan to submit to health testing or face higher premiums has consumer advocates asking just how far employer sponsored health insurance companies will be allowed to go when delving into the personal information of employee participants. It also begs the question of how legal it is.

The plan requires employees to submit their cholesterol, blood pressure and blood sugar levels. Possibly the most controversial of the personal information is that of weight and BMI, or Body Mass Index.

"These changes aren't just about costs, they're about us, each of us taking personal accountability for our own health," Lisa Bissacia, senior vice president and chief human resources officer for CVS Pharmacy said in a video statement.

Employees who refuse to participate in the program will have to pay a $600 per year higher premium.

Health incentives aren't a new idea, various wellness programs have been around the corporate world for many years, but they were meant to encourage a healthier lifestyle and levyed no financial penalty for employees who didn't care to participate.

The wellness program eventually evolved into tobacco-free programs, many of which imposed a higher health insurance premium for those who use tobacco products.

According to a Kaiser survey conducted in 2012, 18% of employers now ask for a health risk assessment from their employees.

"It is absolutely legal with regards to the question of asking for BMI," says Brad Leddon, vice president of the employee benefits division for Coffey & Company. "But the mechanics are often misrepresented in the media."

Leddon says that many of the stories frame the extra money people who don't participate in the program as a "penalty," rather than framing it as a "savings" for the employees who participate.

"Law allows an employer to offer rewards for participation in a wellness program," says Leddon.

Leddon says that there are criteria with regards to the amount of the reward, as well as basing the reward on participation and not outcome. "You can have a smoking cessation program, but can't base the payment of the rewards on the participant actually quitting," says Leddon.

Joel Winston, an attorney and founder of annualmedicalreport.com, agrees--nothing there are some different state regulations. He also says that the Affordable Care Act (widely known as Obamacare) paves the way for companies eventually to impose a surcharge on people who are unable to achieve fitness goals. "Despite the language in the health care law that requires companies to provide 'reasonable alternative standards' for people who are unable to achieve fitness goals, obesity is an entrenched problem that's not easy to fix or eliminate," says Winston.

He adds that there is also what he refers to as the 'Biggest Loser Problem.' "In fact, for many severely obese workers, losing 50 to 150 pounds would be a life-changing success, but not enough weight to achieve normal BMI and avoid the penalty."

Steve Silberberg with fitpacking.com, a company that takes people hiking as a way to get fit and lose weight, says that the BMI indicator is a sham anyway.

Silberberg says his example is to look at Dwight Howard, a pro basketball player. "He looks like Superman." However, at 6'11" and 265 pounds, he has a BMI of 27, which is considered overweight, and if he were under such healthcare rules, he would have to pay a higher insurance premium. "It's a travesty," says Silberberg.

What is BMI

Keith Devlin, a mathematician at Stanford University agrees. He says that BMI was developed in the nineteenth-century by Lambert Quetelet, a Belgian mathematician and statistician to give a measure of average obesity.

BMI basically equals weight in kilos/square height in meters.

"It doesn't make scientific or medical sense to divide a person's weight by the square of his height, but it did match his data," says Devlin. "He explicitly acknowledges that it makes no sense to apply it to a single person. It was a statistical measure of a population."

Devlin says that the reason it doesn't make sense is exactly the reason that Dwight Howard would have a high BMI.

"Use of the formula presumes an average distribution of bone, muscle, and fat, yet these have very different densities. In particular, because muscle is heavier than fat and bone heavier still, an athletic person with healthy, solid bones and lots of well-honed muscle, but virtually no fat, will have a high BMI, comparable to a thin-boned, muscle-weak person with a large, flabby waist. Both get classified as overweight obese," Devlin says.

Devlin says that if more employers start using this indicator as a tool to assess an employee's overall health, it will probably make them more average, but it could also have negative consequences.

"At one end of the spectrum, obese individuals will become less obese and healthier, a good thing," says Devlin. "At the other end, fit, healthy, strong people will become less fit, and hence fatter, as all that healthy muscle coverts to less dense fat--a bad thing."

--Written by Kerri Fivecoat-Campbell for MainStreet

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