Piggybacking on a Wall Street Journal story about how Castlight Health uses health data to drive healthcare savings for employers, The New York Times editorial board called Sunday for federal protections that would prevent employers from hiring or firing based on an employee's health data.
"[A] group of legal scholars has called for federal legislation that would bar companies from hiring or firing people based on health information gleaned through health data services. It would also ensure employees’ right to see the information these services collected about them and to have that information deleted," the Times wrote. "As data analysis techniques evolve, such services will be able to draw ever more sophisticated conclusions about people based on their health care use. Americans need federal protections to make sure that those conclusions don’t cost them their jobs."
The Times points out that as it stands right now, health data collected by employers is in a grey area. It isn't protected by HIPAA, which strictly controls how a patient's doctor or hospital -- or any business associate they share personal health data with -- can use patient health data. And as the editorial explains the Americans with Disabilities Act "prohibits employers from discriminating against workers who have disabilities, but it does not ban discrimination based on behaviors like smoking, inactivity or eating fatty foods, or based on a person’s probability of having a disability in the future."
This point was driven home in January, when a Wisconsin judge ruled that an employee wellness program at plastics manufacturer Flambeau did not violate the ADA. As we reported at the time, as well as pursuing cases like this through the courts, the Equal Employment Opportunity Commission has published a proposed amendment to the ADA in the Federal Register. If enacted, it might provide some of the protections the Times is seeking, as it's designed to bring the ADA in line with HIPAA.