Discrimination by Any Other Name Is Still Illegal

Today, with group health insurance for the small business market having been recently re-regulated by an industry-friendly legislature, and their insurers operating with a free hand and no underwriting restrictions, employers no longer have to worry about hiring high medical risks. They can now focus on deleting those employees who first acquired their high risk status during their employment.

The act of protecting the premium rates that a small employer must pay is accounting for much of the new wave of illegal cancer discrimination in the workplace. To rid themselves of the high risks, employers are using tactics such as harassment, demotion, and actual terminations for those who refuse to go quietly off into the night. This is not to say that all small businesses are using these tactics, and that many if not most employers have no intention of punishing their workers for having a long term illnesses or disability. But even one is too many, and we know there are more than this, even though the magnitude of the practice is yet unknown.

The fact remains that there is a substantial economic incentive for employers to purge their ranks of anyone with more than a routine medical history. The reward for such behavior is far lower group health insurance premiums. The penalty for being a good corporate citizen is sky is the limit premium increases, which is an intolerable expense for any business.

Today’s state and federal insurance and health care regulations facilitate these high risk purges. It begins when a new employee is told to complete a health status questionnaire if he or she wants to participate in an employer’s group health plan. It continues when an existing employee, regardless of their long-standing experience with their job and their firm, must do likewise when the group plan is renewed or transferred.

In any of these situations, a person with a cancer history is compelled to reveal it even though that disclosure conflicts with federal law (the Americans with Disabilities Act) and many state civil rights laws. The ADA specifically states that an employer is disallowed from asking an employee about their medical history, unless it has a direct bearing on their ability to do the job. They cannot inquire about their cancer history any more than they can ask their age.

If an employee has voluntarily disclosed a cancer condition or history to an employer for any reason, then and only then may the employer disclose this knowledge to a third party; e.g., an insurance company for the purpose of adjudicating a claim.

But this information is nonetheless revealed to an insurer via the health status questionnaire that an employee must complete!   When first disclosed to the insurer, it is inevitably disclosed in turn to the employer. HIPPA, the Health Insurance Portability & Accountability Act, is a federal law that was designed to both regulate how individuals can purchase and retain their health insurance, and to protect their medical privacy.

PAGE 6

NEXT