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Should Employees Be Penalized for Unhealthy Behavior?

A recent Health Affairs article advances a set of ethical criteria for employer-based programs that penalize unhealthy behaviors. Given their growing prevalence and the ethical controversy they stir, the need for ethical guidance is urgent. The authors’ recommendations are thorough and thoughtful, but also have weaknesses that throw into question the practical utility of their guidelines and the ethical acceptability of penalty programs more basically.

Steven D. Pearson and Sarah R. Lieber justify employer-based penalty programs on grounds that unhealthy behaviors impose economic harm on others. Employees who refuse to take steps to healthier living made available by the employer should, they argue, be held responsible in the form of financial penalties. This employee responsibility goes hand in hand with the employer’s responsibility to be good stewards of a limited pool of health care resources, a responsibility that includes developing programs that:

1) penalize only informed and voluntary refusals to take up health promoting opportunities made available by the employer,

2) inform employees of the reasons for the program and provide adequate notification of its implementation,

3) involve employees in the implementation and administration of the program,

4) ensure fair and equal access to health promotion opportunities and resources,

5) create an opt-out appeals process, and

6) set penalties at a level commensurate with employees’ salary level with the goal of motivating behavior change, not driving them out of the insurance plan.

The requirement that penalty programs target only employee decisions to “not take steps made available to them to try to improve their health” is morally significant for two reasons.

First, it precludes from penalty biometric outcomes over which people can exercise little control. As the authors point out, human health has socioeconomic, environmental, biological, and genetic origins. Behaviors also contribute to the development of disease, but health behaviors are constrained by social forces beyond an individual’s control. This ethical concern to not hold people responsible for that which they cannot control also grounds the authors’ exclusion of some behaviors, such as smoking, because of the addictive nature of tobacco.

Second, this requirement tries to address the vastly different resources and opportunities employees have to direct toward a healthy lifestyle. Different income levels, job duties, family circumstances and responsibilities, and social networks all influence one’s time for, ability to, and interest in adopting a healthier lifestyle. By requiring the employer to address workplace resources and conditions, the authors are trying to ensure that employers “level the playing field” and thereby create a fair and equal opportunity for all employees to adopt health-promoting opportunities.

Thoughtful as these criteria are, practical and ethical problems remain. First, the requirement that penalties apply only to voluntary refusals to take up health promoting opportunities suggests that employers can assess with accuracy and fairness when behavior is free and unencumbered.

As philosophers have noted, the question of free will is an old and unresolved problem, and the authors should not be unduly criticized for not solving it. But they offer little advice as to what sort of mechanisms should be put in place to make such evaluations, which promise to be complex. As with health outcomes, health behaviors have early developmental origins, are bound up in culture and class in complicated ways, and are constrained not just by work conditions but by life circumstances.

Complexity does not preclude collective decision-making on these matters, as other public policy models that assess levels of voluntariness and guilt and assign appropriate punishment demonstrate. Judges and juries come to mind.

But the very suggestion of a judicial model raises another ethical question: What might such mechanisms do to workplace relationships and environments? One very real possibility is that they would undermine any sense of mutual trust and reciprocity in the workplace, which is unfortunate in its own right but which could also contribute to poor health.

Second, the authors’ criterion to protect from penalty a class of voluntary yet costly behaviors deemed fundamental to “personal freedom and identity” may prove more problematic than they recognize. The authors cite sexual activity, having children, and many recreational sports as examples of behavior that, while costly, many will want to protect as forms of personal expression and identity. They acknowledge the difficulty of making these determinations and propose a procedural solution likely to produce variation from one organization to the next.

But they do not acknowledge just how wide ranging views of health-related behaviors may be. To take two examples: bigger body types signal health and beauty among some subgroups and smoking cigarettes reinforces ideals of masculinity in some subcultures. Yet, these forms of personal expression will find themselves at odds with most employer-based programs whose primary targets are obesity and tobacco use.

Finally, these decisions are very likely to discriminate against socioeconomically disadvantaged groups. Low socioeconomic groups shoulder a disproportionate burden of injury, illness, and disease and these health disparities hold across all 14 major causes of death.

Socially disadvantaged groups also are more likely than their better off counterparts to engage in unhealthy behaviors. Smoking illustrates this fact well, with the habit now increasingly concentrated among lower socioeconomic classes.

The upshot is that penalty programs are likely to scrutinize and penalize those workers with the least power and voice in their organizations, a result that the authors’ proposed procedural protections may not prevent. As ethically essential as procedural justice is to health promotion activity, a fair process does not guarantee fair results.

None of this is to say that health promotion programs should not try to appeal to and mobilize individuals’ sense of agency. But programs that do this by offering rewards – not threatening penalties – are more ethically sound. Integrating and coordinating such programs with broader community and societal efforts to reduce barriers and facilitate opportunities promise even more ethical advantages and, possibly, better results.

Published on: June 29, 2009
Published in: Health Care Reform & Policy

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