Corporate wellness programs can be discriminatory, UHLC Prof Roberts argues at health law conference 

University of Houston Law Center Professor Jessica L. Roberts discusses the fairness of corporate wellness programs at the 2016 Law Medicine Center Conference at the Case Western Reserve University School of Law.

April 22, 2016 – University of Houston Law Center Professor Jessica L. Roberts questioned the efficiency of corporate wellness programs last week at the 2016 Law Medicine Center Conference at the Case Western Reserve University School of Law in Cleveland.

The day-long conference, —"Corporate Wellness Programs: Are they Hazardous to Well-Being?" — featured discussions on the legal and policy perspectives of corporate wellness programs.

Corporate wellness programs are defined by the Centers for Disease Control and Prevention as a "set of health promotion and protection strategies implemented at the worksite that includes programs, policies, benefits, environmental supports, and links to the surrounding community designed to encourage the health and safety of all employees."

"Wellness programs are not always effective," Roberts said. "This might be putting it mildly under some circumstances.

"One question to consider is, why do we have this limited effectiveness? One of the reasons why could be not all employees actually benefit from what a wellness programs might offer. If some employees do not benefit, the absence of a benefit might raise issues with respect to social justice and access to healthcare, depending on which employees those might be."

Roberts discussed how corporate wellness programs use nudges to encourage healthier habits among employees. Nudges are meant to encourage healthier habits, and seek to address and exploit certain quirks in human cognitive functioning. However, Roberts argued that some employees are "nudge-proof" and fail to make healthy decisions because of external factors that are environmental or social.

"Lack of resources can manifest in income – people who don't have the means to buy healthier food. It's cheaper to buy something in boxes than it is to buy produce. It can be access – a grocery store is not immediately available to you, or you don't have transportation. Time is also a resource. A single mother with care-giving responsibilities might really want to go to the gym, but she doesn't have enough free time to make that happen."

Roberts said the three groups most likely to be nudge-proof are women, certain ethnic and racial minorities, and people with disabilities. Women are nudge-proof because of the gender pay gap, physical effects of pregnancy and child birth, and are more inclined to have care-giving obligations. Minorities are more vulnerable to social determinants of health, like living in a "food desert" — an area where affordable, healthy food is not accessible. Disabled people are nudge-proof because many struggle with having access to exercise equipment or transportation.

Roberts said that being nudge-proof can have unfortunate results beyond not benefitting from the corporate wellness program.

"Some people simply cannot respond to certain types of nudges that are present within these wellness programs," Roberts said. "The point of these wellness programs is to target chronic conditions that are the result of unhealthy lifestyles. The people who can't take the employer up on a particular nudge won't get the benefit of their reduced chance at a chronic condition."

Roberts said corporate wellness programs can improve with feedback from nudge-proof employees and by being more flexible.

"If the basic proposition is to encourage people to make healthier decisions, we first have to make sure they have meaningful choices," she said. "If nudge-proof employees can explain some of the limited effectiveness of corporate wellness programs, and that if we focus on autonomy-enhancing policies that allow benefits while avoiding consequences, we can provide people with more choices."

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