Fitbit: employer penalties for not using.

The music teacher at the local high school has been winning the daily step counts. It turns out playing the piano was wracking up HUGE numbers of steps.

These things can be gamed.

So maybe bring it up with the employer? Talk through the problem and see if it can be solved?

From an EEOC press release on the topic: https://www.eeoc.gov/eeoc/newsroom/release/5-16-16.cfm

"Many employers offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. These programs sometimes use medical questionnaires or health risk assessments and biometric screenings to determine an employee's health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels. Some of these programs offer financial and other incentives for employees to participate or to achieve certain health outcomes....

The final ADA rule provides that wellness programs that are part of a group health plan and that ask questions about employees' health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule provides that the value of the maximum incentive attributable to a spouse's participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee. No incentives are allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee's spouse, and an employee's children.

However: see http://www.icemiller.com/ice-on-fire-insights/publications/data-privacy-and-workplace-wearables-can-employee/

"...to the extent data collected is used to reward healthy fitness behaviors (e.g., with a health premium discount or contribution to a health savings account), the underlying wellness program must comply with HIPAA nondiscrimination rules. HIPAA's nondiscrimination provisions require that company wellness programs allow a reasonable alternative, or waiver of the requirement, for employees unable to complete a health-related activity facilitated by use of a fitness tracker."

Additional information from the EEOC (from one of the links in the press release):

"The term "wellness program" generally refers to health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment. Many of these programs ask employees to answer questions on a health risk assessment (HRA) and/or undergo biometric screenings for risk factors (such as high blood pressure or cholesterol). Other wellness programs provide educational health-related information or programs that may include nutrition classes, weight loss and smoking cessation programs, onsite exercise facilities, and/or coaching to help employees meet health goals....

...Title I of the ADA prohibits employers from denying employees access to wellness programs on the basis of disability, and requires employers to provide reasonable accommodations (adjustments or modifications) that allow employees with disabilities to participate in wellness programs and to keep any medical information gathered as part of the wellness program confidential....

Before this final rule was issued, EEOC's ADA regulations stated that employers may make inquiries and conduct medical examinations that are part of a voluntary health program but did not define the term "voluntary" or explain what constitutes a "health program." The regulations also did not say whether the ADA allows employers to offer incentives to encourage employees to participate in such programs. EEOC issued this rule to provide guidance on the extent to which employers may offer incentives to employees to participate in wellness programs that ask them to answer disability-related questions or undergo medical examinations. The rule also explains the differences between the ADA's requirements for voluntary health programs and other federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (Affordable Care Act), which governs wellness programs that are part of a group health plan.

...In issuing this final rule, EEOC sought to provide consistency with HIPAA and the Affordable Care Act rules on wellness program incentives, while also ensuring that incentives would not be so high as to become coercive and render participation in the program involuntary. The ADA also regulates certain aspects of wellness programs that HIPAA and the Affordable Care Act do not. Consequently, there are some differences between this rule and the wellness program rules under HIPAA and the Affordable Care Act.

HIPAA and the Affordable Care Act allow wellness programs that are part of an employer-sponsored group health plan to offer incentives for "health-contingent" wellness programs. These programs offer rewards to employees who perform activities (such as walk 10,000 steps a day) or achieve certain health outcomes (such as lowering their blood pressure), or impose penalties if they do not perform an activity or fail to achieve a particular outcome.

The regulations implementing HIPAA do not impose any incentive limits on "participatory" programs (such as programs that only ask employees to complete a HRA or attend a smoking cessation class). As long as these programs are available to all similarly-situated individuals, and incentives are made available regardless of a health factor (e.g., participating employees receive the same incentive regardless of the answers provided on a HRA about their health status, medical condition, medical history, or disability), participatory wellness programs do not violate HIPAA and the Affordable Care Act....

8. What are some examples of wellness programs that meet the "reasonably designed" standard?

A wellness program that asks employees to answer questions about their health conditions or have a biometric screening or other medical examination for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is reasonably designed to promote health or prevent disease. Collecting and using aggregate information from employee HRAs to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) also would meet this standard....

9. When is an employee's participation in a wellness program considered "voluntary"?

Like the proposed rule, the final rule lists several requirements that must be met in order for an employee's participation in a wellness program that includes disability-related inquiries or medical examinations to be considered voluntary. Specifically, an employer:

may not require any employee to participate;
may not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan; and
may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes.
Additionally, in order to ensure that an employee's participation is voluntary, an employer must provide a notice that clearly explains what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure. Finally, an employer must comply with the incentive limits explained below. (See Qs & As 12 - 14, below.)...

12. How much of an incentive may an employer offer to encourage employees to participate in a wellness program or to achieve certain health outcomes when a wellness program is offered as part of a particular health plan?
If a wellness program is open only to employees enrolled in a particular plan, then the maximum allowable incentive an employer can offer is 30 percent of the total cost for self-only coverage of the plan in which the employee is enrolled.

For example, if the total cost for self-only coverage for the plan in which the employee is enrolled is $6,000 annually, the employer can reward the employee up to $1,800 for participating in the wellness program and/or for achieving certain health outcomes (or penalize the employee up to the same amount for not participating and/or failing to meet health outcomes). The employer also could offer the same level of incentive if it offered only one group health plan but allowed any employee to participate in the wellness program regardless of whether he or she is enrolled in the health plan.

Pretty good piece: https://www.theguardian.com/lifeandstyle/us-money-blog/2015/may/01/employers-tracking-health-fitbit-apple-watch-big-brother

Also: http://www.cio.com/article/2377723/it-strategy/pros-and-cons-of-using-fitness-trackers-for-employee-wellness.html

Our program started out as a bonus and has turned punitive. I have colleagues who have time to take 2 hour lunches while other people are lucky to leave their desk to use the bathroom let alone to take the e-learning course on work life balance. I am stuck toward the crappy end of the spectrum but know a lot of people who have it worse.

I just try to remember what my boss told me once: "no one cares if you are happy"...it helps a lot.