CVS has outraged many by announcing that it wants all employees who wish to use its health plan to submit health information such as weight, body fat, and blood sugar. Those who don’t comply with the drug store chain’s new policy will face a $600/year fine. To debate the merits and fairness of this move, Fox & Friends‘ Brian Kilmeade invited Steven Mitchell Sack, an employment attorney and author, and John Banzhaf, a law professor. Things quickly got heated.
Sack immediately deemed the story “an outrage,” noting that the policy’s penalty, though it may have good intentions, is problematic.
Citing “personal responsibility,” Banzhaf disagreed. “Smoking, according to one decision I was involved in, cost the employer about 2500 bucks for every nonsmoking employee. So increasingly, employers are saying, ‘Personal responsibility. You engage in an unhealthy lifestyle, you pay for it.’”
It’s a growing tend, he added, and legal. Sack jumped in, not buying that line of argument for two reasons: The penalty could constitute illegal wage deductions, and asking for personal health information violates HIPAA privacy rules. Forcing employees to disclose that information is “paramount to getting the company liable for discrimination.”
“Come on, let’s be realistic,” Banzhaf retorted. “I teach in this area. Most of what you said is wrong.” CVS is a massive company, he said, therefore the policy was carefully vetted.
“Let’s say some of these people are union members, okay?” Sack interjected. “They need to have a collective bargaining agreement in order to get that done. You’re basically talking about — and what happens if they don’t give the information, they refuse to and they get fired?”
“I battled this out in the court, you just write books,” Banzhaf replied, getting away from the topic and into personal territory.
“I’m the employee’s lawyer. I’m a practicing attorney,” Sack defended. “I changed the law in New York.”
“You’ve got a lot of soundbites,” Banzhaf told him, “but not a lot of sound legal arguments.”
Soon after, Kilmeade jumped in to wrap up the segment, remarking on their “nice personal attacks.”