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This analysis does not completely eliminate the possibility of health benefit-related coercion. Consider health risk assessments (HRAs), which collect information about employees' current health status, health risks, and health history, and serve as a foundation for many wellness programs. (See National Business Group on Health and Towers Watson, supra note 11, at 16.) The Americans with Disabilities Act (ADA) limits employers' ability to engage in disability-related inquiries, but allows “voluntary medical histories” as part of an employee health program. (42 U.S.C. § 12112(d)(4).) The Equal Employment Opportunity Commission (EEOC) has suggested informally that the ADA would forbid a penalty in the form of denial of insurance benefits to an employee who declines to respond to a health risk questionnaire containing questions seeking disability-related information. (Letter from Peggy Mastroianni, R., EEOC [March 6, 2009], available at <http://www.eeoc.gov/eeoc/foia/letters/2009/ada_disability_medexam_healthrisk.html> [last visited June 9, 2011].) The implication is that the EEOC views the provision of benefits as an appropriate baseline, such that a threat to deprive someone of these benefits if they refuse to complete an HRA has the potential to be coercive, rendering the medical history “involuntary.” [last visited June 9, 2011].) The implication is that the EEOC views the provision of benefits as an appropriate baseline, such that a threat to deprive someone of these benefits if they refuse to complete an HRA has the potential to be coercive, rendering the medical history “involuntary.”' href=https://scholar.google.com/scholar?q=This+analysis+does+not+completely+eliminate+the+possibility+of+health+benefit-related+coercion.+Consider+health+risk+assessments+(HRAs),+which+collect+information+about+employees'+current+health+status,+health+risks,+and+health+history,+and+serve+as+a+foundation+for+many+wellness+programs.+(See+National+Business+Group+on+Health+and+Towers+Watson,+supra+note+11,+at+16.)+The+Americans+with+Disabilities+Act+(ADA)+limits+employers'+ability+to+engage+in+disability-related+inquiries,+but+allows+“voluntary+medical+histories”+as+part+of+an+employee+health+program.+(42+U.S.C.+§+12112(d)(4).)+The+Equal+Employment+Opportunity+Commission+(EEOC)+has+suggested+informally+that+the+ADA+would+forbid+a+penalty+in+the+form+of+denial+of+insurance+benefits+to+an+employee+who+declines+to+respond+to+a+health+risk+questionnaire+containing+questions+seeking+disability-related+information.+(Letter+from+Peggy+Mastroianni,+R.,+EEOC+[March+6,+2009],+available+at++[last+visited+June+9,+2011].)+The+implication+is+that+the+EEOC+views+the+provision+of+benefits+as+an+appropriate+baseline,+such+that+a+threat+to+deprive+someone+of+these+benefits+if+they+refuse+to+complete+an+HRA+has+the+potential+to+be+coercive,+rendering+the+medical+history+“involuntary.”>Google Scholar

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Emanuel also identifies a third concern, exploitation, which refers to “the unfair distributions of goods that arise from an interaction” because of weakness in bargaining power. Id., at 101. Wertheimer further explains that for an exploitative agreement to exist, the content must be “unfair or wrong” in some way, perhaps involving an unfair price, or the exchange of a good that should not be exchanged, or a degrading activity. Wertheimer, A., “Remarks on Coercion and Exploitation,” Denver University Law Review 74, no. 4 (1997): 889–906, at 898. To the extent that incentive programs are designed to improve health, exploitation would not seem to be a concern.Google Scholar

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