Employer Wellness Plans May Raise Data Collection Issues 

anesthesiamachine_thinkstockEmployers that offer wellness programs and use “wearable technology” to collect employee health data must navigate through a variety of federal statutes, employment attorneys said in a conference session March 18.Navigating through potential legal issues with wellness plans can be a tremendous challenge, J. Timothy McDonald said during a panel discussion. There may be implications under the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Health Insurance Portability and Accountability Act and the Employee Retirement Income Security Act, McDonald, a management attorney with Thompson Hine LLP in Atlanta, said.The use of wearable technology, such as a Fitbit physical activity tracker, also raises privacy issues about what information is being collected and who is receiving that information, attorneys said.Employers seem to like wellness programs because of their potential to provide cost savings for health insurance, but they raise some concerns for employees, Ellen Doyle, an attorney with employee-side firm Feinstein Doyle Payne & Kravec LLC in Pittsburgh, said.One problem for workers who participate in wellness programs is the potential for “shaming,” Doyle said. The idea that an employer can point to a person and say “we need to get that fat one working out” is a very troubling aspect of these programs, she said.Doyle said employees who have multiple health problems aren’t happy about these programs. Some health conditions are more prevalent in certain age, racial or ethnic groups, she said.Wearable Technology Collects Employee DataWearable technology includes smart watches, smart clothing, Fitbits and other devices that collect health data and connect to the Internet, said Danielle Van Lier, senior counsel for intellectual property and contracts at the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA). She said wearables can measure movements, heart rate, temperature and perspiration.The devices also will ask users to enter information manually about height, weight and age to measure calories burned and other performance factors, she said.“There is a company in Sweden that is experimenting with implanting microchips in employees, voluntarily of course,” Van Lier said. Instead of using an employee card to get into the building, workers will be able to tap their arm to get in. That’s a little troubling from a surveillance perspective, but it’s the next wave of technology, she said.

Source: Employer Wellness Plans May Raise Data Collection Issues | Bloomberg BNA

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