Whole Foods' Employee BMI Discount Raises Legal Concerns

According to the Portland Mercury‘s Blogtown, Oregon’s Bureau of Labor and Industries (BOLI) is concerned about the legality of Whole Foods’s new BMI-based discount program. Whole Foods, meanwhile, can’t see why anyone would be mad.

Blogtown’s Patrick Alan Coleman quotes Amy Klare of BOLI, who says, rather sweetly, “the road to you-know-where is paved with good intentions.” She adds that “a lot of times these programs are well intended but not well thought-out,” and that “rewarding people on very specific health issues can run afoul of the law, state and federal.” Not only does the program — which would increase employees’ discount from 20 to 30% if they did not smoke and met certain BMI, blood pressure, and cholesterol targets — have potential privacy problems, it may also be discriminatory. Klare points out that, “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.”

Coleman also talked to Whole Foods spokesperson Vicki Foley, who at first said, “I’m going to have to find out legalities wise. 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.” After consulting with lawyers, she added, “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.” She also promises that employees with disabilities will receive special evaluation, and that BMI information will only be used for the discount program and not made part of employees’ personnel files.

Still, Klare remains concerned. She asks, “How are they going to evaluate how a person has a disability?” Indeed, one reader pointed out that the benchmarks for the 30% discount might be very difficult to achieve for people with diabetes, which the Americans with Disabilities Act now covers. And what about people with genetically high cholesterol, unaffected by diet (yes, they exist)? What about women with PCOS, or people whose medication causes them to gain weight? What about, as Klare asks, African Americans, who tend to have higher blood pressure than other groups? In addition to opening itself up to lawsuits, Whole Foods seems to be working under two key misconceptions: that a few simple numbers can measure a person’s health, and that meting out punishments and rewards based on said health is good policy for a company.

Whole Foods CEO John Mackey mentioned in his letter about the discount program that BMI, cholesterol, and blood pressure weren’t perfect markers for a person’s overall well-being, but that they were cheap and easy to measure. This is probably why BMI has become so popular, despite its limitations, but until we start caring more about scientific truth than about easy chart-making, we’re not going to have a healthier population. And the drive for such a population probably shouldn’t start at work. One of the biggest problems with employer-based health insurance is that it gives employers an incentive to discriminate against the sick, whether or not they can do anything about their conditions. Whole Foods claims it’s just trying to encourage healthy behaviors — and, as some critics of our original post have pointed out, its discount program is voluntary. Still, Mackey has been open about his desire to reduce company healthcare costs, and this desire may lead to rewarding healthy people, regardless of behavior — thus putting those already disadvantaged by medical conditions at an even greater disadvantage.

Yes, there’s a place in our society for encouraging healthy eating and exercise — walkable cities and an end to corn subsidies would be a start. But one reason we need universal health care so badly is so that those who control our jobs don’t also control our bodies. Whole Foods’s program could be a lot worse, but it still illustrates the way in which employer-based health care can turn bosses into amateur doctors and actuaries — and sick employees into liabilities to be managed or even eliminated.

Breaking: Does Whole Foods’ New “No Fatties” Employee Incentive Program Break The Law? [Portland Mercury Blogtown]