Workplace Wellness Programs and Employee Privacy: Do I Have to Share My Medical Records with My Boss?

What if you lived in a world where your boss could require you to undergo genetic testing–tests that reveal deeply personal information about you and your health–and then require you to share the results of those tests with them or face steep fines? Does this all sound like a creepy, Orwellian nightmare to you? Well, maybe it is time to wake up because that frightful vision could become a reality if Virginia Foxx’s (R- NC) bill becomes law.

Genetic testing reveals some of the most deeply personal information about you and your health that exists. Under the long-standing protections of HIPAA, this information is personal and confidential. But what if Congress enacted a law in which your boss could require you to undergo genetic testing, and then require you to share your test results with them, or be faced with steep fines? This may soon be the land we live in if the frightful vision of Virginia Foxx’s (R-NC) bill becomes law.

The “Preserving Employee Wellness Programs Act,” H.R. 1313, proposes to, “clarify rules relating to nondiscriminatory workplace wellness programs,” but what it really does is force employees who are enrolled in workplace wellness programs to disclose sensitive information about themselves to their employers that come from health risk assessments, biometric screenings and other methods that are purported to empower employees to make healthy lifestyle choices, at the cost of the privacy of their personal health records. The bill was approved by a House committee on March 8th with support from 22 Republicans and 17 Democrats opposing it.

Is it illegal to ask for an employee’s genetic information?

In 2008, the Genetic Information Nondiscrimination Act (GINA) became law to prevent discrimination in employment-related health insurance and employment decisions based on genetic information. GINA restricts access to and disclosure of genetic information so that employees do not have to live in fear of their employers using this sensitive information against them. GINA forbids employer-sponsored group health plans from asking individuals to undergo genetic testing. Despite the restrictions put in place by GINA, H.R. 1313 would allow employers to require employees to undergo the testing, and it would give them access to the results of the genetic and other types of testing that they and family members covered by the employee’s health coverage, that they have taken. While the sensitive health information is supposed to be anonymous, it is possible for employers to tie the data to individual employees.

Taking a step back to look at the workplace wellness programs themselves, which, under the soon-to-be repealed and replaced Affordable Care Act (ACA or Obamacare), allowed employers to charge employees 30% to 50% higher premiums for health insurance if they opted out of the voluntary workplace wellness programs. StatNews published an article questioning the overall effectiveness of workplace wellness programs. Some people think that workplace wellness programs help to improve employees’ health and reduce the incidence of preventable disease, but StatNews says that while they have the potential to improve health, few have done so.

Proponents of the bill feel it will lower health care costs. Detractors claim it is an invasion of privacy. Paulson & Nace, PLLC encourages you to read the bill, and to call your state legislators to tell them whether or not you wish to support such actions.