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Sarina Finkelstein (photo illustration); OsakaWayne Studios (pill bottle); David Malan/Getty Images (office lamps)

The Surprisingly Personal Health Questions Your Employer Can Ask You

Nov 19, 2014

This year, one third of employers will ask workers who enroll in the company health plan to complete a questionnaire about their health, according to the Kaiser Family Foundation. That's up from 24% of firms last year. The questionnaires, often called a "health risk assessment," are even more common at big companies; more than half of employers with 200-plus employees offer them.

And as more companies look to control health-care costs with programs aimed at making workers healthier, the stakes for sharing personal details about your health are getting higher.

Last year, Penn State faced a backlash for a questionnaire that, among other things, asked female employees about their pregnancy plans. Workers who refused to fill it out had to pay an extra $100 a month. Penn State later suspended the program.

If you've never seen one of these assessments before, here's what to expect, what happens to the information you provide, and what your rights are.

What kinds of questions can my employer ask?

The questionnaires are crafted to identify current behaviors that may cause costly health problems in the future, says Jillian Fagan of Wellsource, a technology company that creates health risk assessments. Wellsource's questionnaires cover a long list of topics, including weight and height, chronic illnesses, treatments you're getting, your willingness to make lifestyle changes, tobacco use, physical activity, diet, alcohol consumption, cancer screenings, hearing and vision impairment, flu vaccinations, stress levels, and depressive symptoms.

Questionnaire writers have leeway about how to pose the questions. For example, Fagan says employers usually don't want to explicitly ask if you're depressed. Instead, you might be asked questions like, do you have a social group? Are you married? Do you feel like you're getting the support you need? How many alcoholic drinks do you consume every week?

You may also be asked about your outlook for the future, how much time you have to relax, your energy level, and whether you're satisfied with your work-life balance, Fagan says. Wellsource develops its questions based on scientific research and includes links its the underlying medical literature.

Is there anything my employer can't ask?

Inquiring about your parents' health would probably violate the Genetic Information Nondiscrimination Act, which prohibits employers from collecting genetic information, says Maureen Maly, employee benefits and executive compensation attorney at Faegre Baker Daniels. A family history of breast cancer, say, could indicate a genetic predisposition.

"Once upon a time, it would get into some questions about family medical history," says Maly. "Most of these questionnaires will not ask that—and they will usually have a warning saying, 'Don’t volunteer any information.'"

Can my boss see my answers?

Generally, no. Under HIPAA, the Americans with Disabilities Act, and state privacy laws, employers are prohibited from using health risk assessments for any reason other than for wellness programs, says employee benefits attorney Todd Martin.

Keep in mind that often your employer already has information on your health. If your health plan is self-funded and self-administered—meaning your employer pays the claims directly rather than contracting with an insurer or third party—someone in your office gets your health claims. Your employer is legally bound to maintain a firewall, secure your private information, segregate it from other employment files, and limit staff access, Martin says. Health risk assessments aren't much different.

And besides, seeing that information could expose the company to a lawsuit if you're fired or disciplined. "Most employers don’t want to see that information as much as employees don’t want to give it to them," says Fagan of Wellsource.

So employers usually hire a third party to administer the questionnaires. If that's a medical provider, that firm is subject to additional privacy rules, says Martin.

That's really personal! Why is my employer asking me all that?

The goal is to give you a picture of your health and suggest how to do better, Fagan says. "Health risk assessments show you where you're going to be in five years," Fagan says. "If we notice that you don't work out, you're eating lots of sugar, and your diet is not so great, if you continue down this road, you're going to have tons of health problems in the years to come."

Of course, there's something in it for your employer too—potential cost savings if you stay healthy.

How can knowing more about my health save my boss money?

More than half of large firms surveyed say that they see wellness initiatives as one of the most effective tactics for controlling health-care costs, according to the National Business Group on Health. Such programs can include weight-loss and smoking cessation classes, nutritional counseling, gym discounts, and lifestyle coaching.

With a summary of the answers employees gave on the questionnaires in hand, a company can see, for example, that a lot of workers are struggling to quit smoking (but not who those employees are), which can help it decide whether or not to offer a smoking cessation class (a common perk). To date, however, the research on the effectiveness of wellness programs is mixed.

What's more, Jennifer Bard, professor at the Texas Tech University School of Law, says she has serious concerns about the privacy risks associated with wellness initiatives.

"It’s not clear how those risks translate into future health," Bard says. "There isn’t enough information to say that somebody with a particular blood pressure or cholesterol reading or weight is going to have a specific problem. It’s one thing to diagnose someone who is sick, but the science of risk is not as well-developed."

What else can come of sharing health information?

Your employer can set health-related goals for you. For example, if you're overweight, your employer can offer a financial incentive for you to lower your BMI. As part of the Affordable Care Act, those financial incentives can be worth 30% of the total cost of plan costs, up from 20% before health reform.

That kind of outcomes-based wellness program is subject to a strict set of rules, Martin says. If your doctor says that you are unable to achieve the goal, your employer has to offer another way for you to earn the incentive.

Outcomes-based wellness programs are growing but not yet widespread. And only 7% of employers say that employees with health risks must complete some kind of wellness program or face a penalty, according to Kaiser.

"The restrictions have made a number of employers want to stay away from outcomes-based programs and focus on the participation-based programs like the health risk assessment," says Martin.

Can my employer force me to fill out a questionnaire?

Probably not. Only 3% of large firms that offer questionnaires require employees to fill them out, according to Kaiser.

But health assessments, medical screenings, and wellness programs are still a legal gray area.

The Department of Labor says employers can require workers complete a health risk assessment before enrolling in a company health plan, so long as the employer doesn't deny benefits or change premiums based on the information.

But the Equal Employment Opportunity Commission recently sued three employers on the grounds that their mandatory wellness programs violated anti-discrimination statutes. The EEOC has sued Honeywell over its wellness program, even though the company says it's voluntary. But employees and spouses who refuse to participate in health screenings face up to $4,000 in financial penalties, which, the EEOC contends, effectively makes the program mandatory.

"It's helpful for people to know that this is unresolved," says Bard, the Texas Tech University law professor. "These kinds of wellness programs with a bite, with a financial consequence, are relatively new. Everyone is watching the EEOC lawsuits very carefully."

That said, if the wellness program is mandatory, you might have little choice. "In my opinion, anyone who chooses not to comply puts themselves at risk for being a test case," Bard says.

My employer says it's voluntary. Why should I fill it out?

Health risk assessments are a benefit, says Fiona Gathright, president of Wellness Corporate Solutions, a third-party vendor that administers wellness programs for employers. "We’re trying to help people manage their health, and we’re trying to help people live longer," Gathright says. "Answer the questions as honestly as you can. If we uncover that you have a risk, we’re going to you help you a manage that risk."

Still not convinced? More than half of large firms sweeten the deal with some kind of financial incentive, according to Kaiser; 36% of those firms offer a financial incentive worth more than $500.

I'm still uncomfortable with this. What should I do?

Carefully read the disclosures, which usually contain information about who will see your answers and in what form, says Fagan. And ask your own questions

First, who is doing the assessment? An outside vendor, especially one that's also a medical provider, is best. How is sensitive personal information protected from data breaches?

Second, what information gets back to the employer? Only you should see your individual results. If your employer will see aggregated responses, how big is the sample size? Is there any way you could be identified—say, if you're the only obese employee at a small firm? There may be rules against reporting results from small groups.

Finally, ask how your employer intends to use the questionnaire. Know ahead of time if you're just getting information about your health risks—or if you're laying the groundwork for an outcomes-based wellness program that will ask you to make big changes.

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