Tuesday, April 15, 2014

The Wellness Wars Heat Up--Of Lawsuits and Corporate Wellness Programs Pitting Moral Rights Against Legal Power

Universities tend to lag behind their corporate "brothers" and "sisters" in the corporate world.  Mostly it is a matter of re-framing governance cultures.  But also it is that corporations tend to be governance and institution organization leaders--universities follow, and somewhat timidly.  There is good reason--the university is a vastly different form of industry (in culture and organization and governance).

But not, it seems, when it comes to the structuring of benefits--especially wellness programs.

(Pix (c) Larry Catá Backer 2014)

I have been following the wellness wars at Penn State for its valuable lessons about the transformation of stakeholder and governance relations within the university, and for what it tells us about the changes in universities culture about its willingness to control the non-work lives of its employees in the name of revenue protection (e.g., The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives).  As Penn State awaits the report of its Wellness program task force (e.g., The Wellness Wars Continue--A Task Force is Constituted and the Institutional Role of the Faculty is Reduced in Function), it might be well learn what one can when the wellness wars heat up in the corporate world.

What the corporate world is now beginning to experience is that when it crosses deeply held cultural lines--when it treats employees as property over which it can assert increasing control, when it seeks to control the non-working lives and choices of employees, for example--in ways that are alien to basic cultural and political (though perhaps not legal) premises on which this democratic Republic is founded, then there is likely to be a reaction.  In the courts, usually, but not always. 

And so we have this: Jillian Berman and Hunter Stuart,  CVS Sued Over Controversial Wellness Program, Huff Post Business, March 20, 2014, parts of which follow.  What is most interesting in the reporting is the way in which employees invoke moral and personal rights and employers counter with legal power.  In this sort of contest, the employer may win in the short run, but their legally permissible actions will tend to undermine the system that makes their operation possible in the long run.

Jillian Berman and Hunter Stuart,  CVS Sued Over Controversial Wellness Program, Huff Post Business, March 20, 2014

A CVS employee is suing the pharmacy chain over its controversial health-screening program.

CVS cashier Roberta Watterson claims the company made her disclose personal information, including her weight and level of sexual activity, threatening to charge her $600 a year if she refused.

CVS' so-called "wellness review," first reported last year, is a fairly extreme example of a trend of companies looking to cut health-care costs by pushing employees into wellness programs.

Critics claim such programs let employers meddle in workers' lives, unfairly penalize those who have difficulty meeting certain health targets and may put employee privacy at risk.

Though CVS' program is technically voluntary, workers who want to use the company health-care plan pay $600 more in health care costs each year they don't submit to the screening.

. . . . .

Though Watterson's suit highlights the privacy concerns raised by employer health screenings, her more pressing claim in the suit is that CVS should compensate her for the cost of the health screening as well as the gas she used to travel to the doctor and the free time she spent getting tested. The suit is seeking class-action status.

In an email to The Huffington Post, CVS spokesman Michael DeAngelis wrote that Watterson's suit has "no merit."

"Our employee health benefits plan complies with all applicable laws," he wrote. "By knowing their blood pressure, cholesterol and glucose numbers, as well as other potential health risks, our colleagues are empowered to work toward or maintain healthy behaviors that can lower their overall health care costs."

As for worker privacy, DeAngelis wrote that "all results are kept confidential by an independent program administrator" and "cannot be accessed by CVS Caremark management."

About 93 percent of U.S. employers have some kind of wellness program -- an umbrella term that includes everything from in-house yoga to help quitting smoking, according to a 2013 survey by the National Business Group on Health, an association of large employers.

. . . . .

Matt Dunning,  CVS employee sues drugstore chain over wellness fee, Business Insurance, March 25, 2014

A CVS Pharmacy cashier in the Oakland, Calif., area claims in court that the company's practice of penalizing its employees for not completing a wellness examination violates California wage and hour laws.

In a lawsuit against one of CVS Caremark Corp.'s local subsidiaries in California, filed earlier this month in an Alameda County, Calif., Superior Court, cashier Roberta Watterson claims the $600 annual health insurance surcharge CVS employees face if they fail to complete a health risk assessment and biometric screening is illegal under a provision of the state's Labor Code.
. . . . .

Section 221 of California's Labor Code broadly prohibits employers from collecting any part of wages previously paid to their employees. However, a separate section of the Labor Code permits deductions made to cover insurance premiums and other benefit contributions.

A CVS Caremark spokesman said in an email to Business Insurance that the $600 is assessed against employees enrolled in the CVS group health care plans as a surcharge to their premium contributions for nonparticipation in the company's wellness exams, not as a deduction to their gross or net wages. . . . .


See also

CVS Pharmacy Wants Workers’ Health Information, or They’ll Pay a Fine, ABC News.

Heather Johnson, None of Your Business, Worker Tells CVS, Courthouse News Service.

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