The voluntary plan announced earlier this week by Whole Foods CEO John Mackey, the Team Member Healthy Discount Incentive Program, increases employees’ 20% in-store discount to 30% should they lower specific health indicators like blood pressure and body mass index (BMI), and allow that information to be tracked by Whole Foods.
“The road to you-know-where is paved with good intentions,” says Amy Klare, administrator in Oregon BOLI’s Civil Rights Division. “A lot of times these programs are well intended but not well thought-out.”
“Rewarding people on very specific health issues can run afoul of the law, state and federal,” Klare explains. “Personally identifiable health information is protected under state and federal law,” Klare adds, noting how collecting and sharing health information could violate federal health privacy laws laid out in the 1996 Health Insurance Portability and Accountability Act (HIPAA).
A poster released on Jezebel.com, where news of the Whole Foods program first broke, delineates how increases in employee discounts would be linked to specific health indicators. In order for any increase in the discount to occur, a participating employee must be tobacco free, have a blood pressure of 140/90, total cholesterol count of 195 or less, and a BMI of 30 or less. Further lowering of these indicators increases the employee discount.
Which is where the problems arise, Klare says. “There are times when a person can have a condition that can affect their BMI. Blood Pressure can be affected by Thyroid. And off-work tobacco use is a protected status.”
A person affected by conditions that increase specific health indicators may not seek entry into the program, or succeed, explained Klare, which would make the program discriminatory.
In an internal memo announcing the plan to Whole Foods employees Mackey, a prominent opponent to national health care reform, notes that the $150 million Whole Foods Market spent on health care in 2009 is expected to rise significantly in the coming years. He suggests the new incentive program would be a way for employees to do their part. The program is certainly consistent with the lightning rod of an op-ed he penned for the Wall Street Journal in August of last year:
Unfortunately many of our health-care problems are self-inflicted: two-thirds of Americans are now overweight and one-third are obese. Most of the diseases that kill us and account for about 70% of all health-care spending—heart disease, cancer, stroke, diabetes and obesity—are mostly preventable through proper diet, exercise, not smoking, minimal alcohol consumption and other healthy lifestyle choices.
However, if the response from the State is any indication, Mackey may want to re-think how he’s encouraging his employees to get healthier.
Whole Foods Spokeswoman, Vicki Foley, was unable to address potential discrimination issues.
“I’m going to have to find out legalities wise,” she said, promising to call the Mercury back in ten minutes or so, about 20 minutes ago. “I’m a bit surprised because it’s something we’re all excited about. It’s supposed to be a really fun interactive thing that you can participate in or not.”
We’ll keep you updated. In the mean time, if you're fat and work for Whole Foods, get in touch with me at email@example.com. I'd be interested to know if you feel like launching a civil rights complaint.
UPDATE!: After "talking to about three lawyers" Foley has got back in touch with us to clarify the Whole Foods policy saying, "Basically while the potential exists for people to raise claims for any healthy incentive program, we’ve taken measures to ensure that this one is administered in a non-discriminatory way."
"If there is a way a person cannot meet the bio-metric criteria due to a disability, we will evaluate those on a case by case basis," she continues.
In regards to HIPAA, "No one in Whole foods Market will receive the information unless they’ve signed a HIPAA. And the information will only be used to determine discount card eligibility. It is not a part of their personnel file and will never be disclosed to anyone."
So, are there employees out there with disabilities who will plead their case for their 10%? And is that appropriate? We've got a call into BOLI to get their response. Stay tuned.
BIG UPS to Blogtownie Reymont for tipping us off on the story! do you have a tip? Hit the Blogtown tip button above the Blogtown logo and let us have it!
UPDATE 3:30 PM:
We've received a call back from Amy Klare of BOLI who is still concerned, despite Whole Foods promise to look at disabled employees' participation in the program, suggesting Whole Foods may still open themselves up to liability from the Americans with Disabilities Act (ADA).
"How are they going to evaluate how a person has a disability?" she asked. "How are they going to do determine that?"
She was also concerned that many of the health indicators, or bio-metrics as Whole Foods calls them, may not be as neutral as they seem to be. "This could also have a disproportionate affect on African Americans or other racial minorities," she said, noting the prevalence of high blood pressure in African American communities.
Klare notes that BOLI's Civil Rights Division has no plans to act unless an employee brings a complaint against Whole Foods but, "if someone felt they were treated differently, that is something we’d look at."
Once again, if you work for Whole Foods and have concerns about being discriminated against with this program, get in touch: firstname.lastname@example.org.
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