In early May of this year, the Equal Employment Opportunity Commission (EEOC) invited members of the public to submit written comments on any issues or matters discussed at their hearing on Wellness Programs. "Employers may want to take this opportunity to tell the EEOC why they believe these programs are important to the efficient operation of their businesses," advised an alert by law firm Jackson Lewis LLP.
Through efforts initiated by NAAFA member Darliene Howell, NAAFA members, as well as other organizations and members of our community, rose to the occasion and submitted written comments regarding the lack of effectiveness of wellness programs that focus on weight loss as a measure of success. You may read the final document submitted by the community wide efforts at: http://tinyurl.com/nyn4xkp
The NAAFA board of Directors sent the following letter to the EEOC:
Thank you for the opportunity to comment on the meeting of May 8, 2013 - Wellness Programs Under Federal Equal Employment Opportunity Laws.
NAAFA, a civil rights organization working for equality at every size, objects to some of the wellness programs currently being instituted by employers. Our objection is not with employers offering wellness programs; it is with those whose wellness programs include punitive measures or differential rewards based on health status factors, including a person's cholesterol, blood pressure, weight or body mass index. Body size or weight is not a proxy for health or wellness. These programs are discriminatory practices.
Because weight loss efforts (from dietary restriction [Tomiyama, et al, 2010] [Mann, et al, 2007] [McTiernan, et al, 2004] to surgical intervention [Shankar, et al, 2010] [Himpens, et al, 2011] [Derogar, et al, 2013]) carry significant health risks and may be complicated by medication [Fernstrom, 1995] or other conditions, the decision to attempt weight loss is a private one that should only be made in consultation with one's personal physician. Wellness programs should never require the use of BMI or other measures of weight as a required metric for that reason; to the extent that a measurement of weight is used, alternate measures that are independent of weight must also be used to avoid disproportionately discriminating against fat people with disabilities by what will be a de facto requirement that they disclose personal and confidential medical information or, alternatively, attempt medical interventions that are dangerous for them compared to their thin counterparts.
A 2002 study, Evaluating a 'non-diet' wellness intervention for improvement of metabolic fitness, psychological well-being and eating and activity behaviors, whose objective was "to evaluate the effects of a 'health-centered' non-diet wellness program, and to compare this program to a traditional 'weight loss-centered' diet program;" concluded:
"Over a 1 y[ear] period, a diet approach results in weight loss for those who complete the intervention, while a non-diet approach does not. However, a non-diet approach can produce similar improvements in metabolic fitness, psychology and eating behavior, while at the same time effectively minimizing the attrition common in diet programs." [Emphasis added]
Studies indicate that dieting results in one third to two thirds of dieters regaining more weight than they lost on their diets (aka yoyo dieting) [Mann, 2007 and Pietilainen, 2012]; yoyo dieting has a negative effect on the immune function [Hutchison, 2004].
The 2013 study, Wellness Incentives In The Workplace: Cost Savings Through Cost Shifting To Unhealthy Workers [Horwitz, et al, 2013], states "Recognizing the risk that unhealthy employees might be punished rather than helped by such programs, the [Afforable Care] act also forbids health-based discrimination." Additionally, it finds: "Although there may be other valid reasons, beyond lowering costs, to institute workplace wellness programs, we found little evidence that such programs can easily save costs through health improvement without being discriminatory. Our evidence suggests that savings to employers may come from cost shifting, with the most vulnerable employees--those from lower socioeconomic strata with the most health risks--probably bearing greater costs that in effect subsidize their healthier colleagues." [Emphasis added]
For supersize individuals at the highest end of the weight spectrum who are disabled by their weight, protections under the ADA are now clear via both court decisions and EEOC guidance. To avoid blatant discrimination, all Wellness Programs must have a mechanism to accommodate such individuals so that they have the same ability to earn discounts and avoid penalties as their thin peers. A Wellness Program that allows (or requires) a person to walk a daily mile to earn a bonus (or avoid a penalty) would clearly violate the rights of a person with a disability who could not walk, and this remains true even if the disabled individual might be able to walk in the future if they engage in Herculean efforts. So, too, the requirement that a supersize person who is disabled by their weight achieve a "normal"/target BMI to earn a bonus (or avoid a penalty) would violate his/her rights, even if he/she might be able to do so via Herculean efforts.
NAAFA supports the evidence-based principles of Health At Every Size (HAES). These principles are aligned with our mission. Instead of focusing on weight as a measurement of health, the HAES approach removes weight from the equation and replaces it with a focus on overall well-being, which includes the full range of body shapes and sizes. For information on HAES principles, go to http://www.naafaonline.com/dev2/education/haes.html
As representatives of one of the major stakeholders involved, NAAFA members and the NAAFA Board of Directors support a thorough examination of the rules guiding employer wellness programs to ensure that they are not promoting discriminatory hiring and employment practices.
We appreciate the willingness of the EEOC to listen to the concerns of the public, and NAAFA is offering its assistance in referring experts who may be of service to you in finding health-based alternative wellness programs.
The NAAFA Board of Directors