Law professor Carrier Griffin Basas has published a new journal article analyzing the potential disability rights conflicts inherent in the increasing development of employer-funded wellness programs.
For years, and increasingly after the passage of the Affordable Care Act, many businesses have provided financial and other incentives to employees who make efforts to improve their physical health. Basas’ article tracks the development of this movement, arguing that despite its good intentions, it has the potential to overinflate societal expectations of what can be expected of these employees, to the detriment of people with disabilities.
“Some of the greatest insights that the disability rights perspective offers are questioning which health goals are attainable, who is in charge of creating and validating them, and to whom should these goals extend,” the article states. “They may not be appropriate for everyone; indeed, they are not.’ “The dominant thread among the wellness-oriented is: ‘Of course, health is desirable.’ Many things can be fixed about health and should be.’
“It is this model of fixing that early disability rights advocates resisted and labeled as the ‘medical model,’ that they attempted to replace with a civil rights or social model of disability to dismantle the destructive fallout of personal or moral responsibility for disability differences.”
Many aspects of wellness programs are uncontroversial, such as rewards based solely on public participation, like gym memberships and reimbursements for smoking cessation programs.
However, Basas argues that these programs violate the Americans with Disabilities Act when they punish people on the basis of their disability, such as when employers fail to provide alternative options to people with disabilities to achieve certain employer benefits.
Of equally pressing concern is the potential for employers to abuse their superior position and unnecessarily inquire into their employees medical conditions.
“Placing employers in this managerial, paternalistic role…runs afoul of the ADA in using standards or criteria that have the effect of discrimination,” the article states. “The ADA…places tangible privacy and confidentiality constraints on employers. Taking the narrow relevance of such health information seriously, the Act limits how far that information can be shared.”