What if an employer interested in improving the health of its employees—and reducing its health insurance premiums—could slap a device on workers to show statistics on physical fitness? Not only could the people participating in an employer-sponsored wellness program track their own progress, the employer also could see just how hard participants in its program work. 
Sounds simple and, indeed, with the proliferation of wearable activity trackers, it’s easy to collect a wealth of information. It may not be so simple, though, to avoid legal problems.
First, employers that incorporate activity trackers into their wellness programs need to think about what they plan to do with the information the trackers are capable of providing, says Kelly Smith-Haley, an attorney with Fox, Swibel, Levin & Carroll, LLP in Chicago. Are they handing out devices without asking any medical questions? If so, there is less exposure under the Americans with Disabilities Act (ADA), she says. More than likely, however, an employer putting a tracker on people covered under a group insurance plan also will ask for medical information that might run afoul of ADA regulations.
Proposed regulations
The Equal Employment Opportunity Commission (EEOC) in April published a Notice of Proposed Rulemaking relating to the ADA and employer wellness programs that are part of group health plans. The EEOC says the new rule is necessary to provide guidance to both employers and employees about how such programs can comply with the ADA.
Many employer programs use health risk assessments and biometric screenings that reveal a person’s health risk factors, such as weight, cholesterol, blood glucose, and blood pressure levels. The ADA allows such inquiries and medical exams if they are voluntary and part of an employee health program, but the law does place limits on the circumstances around such inquiries and exams.
The EEOC’s announcement of the proposed rules points out that programs seeking information about employee health or medical exams “must be reasonably likely to promote health or prevent disease.”
Also, employees cannot be required to participate, and they cannot be denied health coverage or disciplined for refusing to participate. The rule also explains that financial incentives for participating in a program may not be more than 30 percent of the total cost of employee-only coverage.
Employers also need to make reasonable accommodations for people with disabilities so that they can participate in the wellness program and earn the incentives it offers.
Employers considering using activity trackers that collect and report data on the wearers need to consider the type of information they learn, Smith-Haley says. The devices may be capable of reporting confidential information about individuals, but employers need to make sure they see the information only in aggregate form. For example, an employer can learn how many steps all of its program participants take in a day, but it shouldn’t learn that information about individuals.
So if an employer is requiring people to wear a device so that the employer can learn information on the fitness level of an individual, that employer likely is stepping over the line. “Employers need to really be mindful of what they’re learning and what they’re tracking,” Smith-Haley says. It’s easy for employers with good intentions to make mistakes.
Partnerships with device makers
Manufacturers of activity trackers are capitalizing on the popularity of the devices by getting into the wellness program business. For example, Fitbit touts its partnership with wellness programs on its website. The company offers help launching a program that gives employees a way to track their progress and compare their performance with others. The program also promises “powerful reporting” so that administrators can gauge the performance of a program with “comprehensive stats and summaries.”
An August 21, 2014, article on the Bloomberg Business website tells of the experience some employers and insurance companies are having using the devices. The article reports that oil giant BP bought 25,000 Fitbit devices for its North American employees. The article also points out that the company saw data only in aggregate form.
Another company highlighted in the Bloomberg article, Appirio Inc. in San Francisco, reported negotiating $300,000 off the company’s approximately $5 million annual insurance cost by sharing data from Fitbit with the company’s health care provider. The article reported that the Appirio’s CEO said the company’s program includes privacy protections.
Accuracy questions
Before placing too much stock in activity trackers, employers might want to consider accuracy. In January, the online monthly publication of the American Council on Exercise reported on the accuracy of activity trackers. The council enlisted researchers from the University of Wisconsin-La Crosse to examine five popular devices.
The research found that all of the devices performed well when tracking steps taken during treadmill walking and running and during elliptical exercise. Accuracy in tracking steps fell off when the wearers participated in agility drills, probably because those drills involved a variety of more complex movements, according to the research.
The devices were even less accurate when estimating energy expenditure, according to the study. Some overestimated and others underestimated the numbers of calories burned.