Bravo held a webinar today which was designed to reassure employers that they could still “pry, poke and prod” employees in the post-AARP v. EEOC world. And yet somehow, as is often the case when wellness vendors attempt to do something, they accomplished just the opposite. If I were an employer attending this webinar, I’d be running for the exits.
By way of background, I know I’ve been a little rough on Bravo in the past. Nothing major. Just pointing out that:
- They don’t know anything about wellness, which I attributed to a faulty internet connection;
- Their outcomes are fabricated;
- They brag about how much they save by penalizing employees.
But I have to give them credit this time. They were actually honest. Of course, honesty is what gets wellness vendors in trouble, such as when they accidentally admit 90% to 95% of programs fail, or that wellness loses money, and harms employees. This is no exception. They and their counsel did not sugarcoat the reality that it is almost time to panic. (“In-house counsel may have a risk profile” that is not conducive to continuing to harass employees starting in 2019. In other words, any in-house counsel that wants to keep their job would say that the benefits of fining employees who refuse to let Bravo play doctor with them don’t outweigh the potential for liability.)
Bravo also had claimed they were going to address “rumors” and “chatter” and “fiction” about the decision in AARP c. EEOC. I was sure they were referring to me, but perhaps my ego is too large. They didn’t attempt to rebut my argument at all. Instead, they found some other “rumors” to denounce quite accurately as “false.” Here is a f’rinstance:
First of all, “illegal” is not a word that I or any responsible attorney would use in that case. You wouldn’t go to jail if you offered a large inducement or threatened a fine. A better word or phrase would be “unallowable” or “not protected by a safe harbor.” Second, it’s not the case that wellness incentives of any amount would be unallowable or illegal or anything else. Everyone would agree that small incentives, like gift cards, can be offered as part of a voluntary program. No one knows where the line will be drawn. And then finally, it’s not all “wellness incentives.” It’s specifically incentives for Bravo-type “pry, poke and prod” programs.
So their attorneys are right. Not just on this slide, but in general, I would have a hard time parsing the difference between what their high-priced lawyers said today and what I said in my webinar, other than Bravo’s attorneys didn’t explicitly state that Bravo-type programs are toast. They merely implied it.
Basically those attorneys and I are in total alignment. Bravo’s attorneys observed that Quizzify-like programs (not requiring medical exams) are the only kind that aren’t adversely affected by this ruling. Quite the contrary, of course, Quizzify is willing to indemnify employer customers who still want to do wellness programs, if they offer Quizzify as an option.