Tuesday, October 14, 2014

The Unhealthy Side Effects of Employer Wellness Programs

I love wellness programs. I am a sucker for discounts of any sort, and I especially like the idea of rewarding healthy behavior. My bicycle has a tag that logs my work commute when I pass the electronic stations throughout the Twin Cities, and I smile every time I hear its gratifying “beep.”

So, I understand why employers like wellness programs. What’s not to like about incentivizing healthy lifestyle changes while also lowering health insurance costs, decreasing absenteeism, and increasing productivity? As is so often the case, however, the devil is in the details.  If wellness programs are implemented poorly, they can sour a workplace’s culture and lead to legal headaches and costs.

Just this month, the U.S. Equal Employment Opportunity Commission (EEOC) filed a disability discrimination lawsuit in Wisconsin against an employer that it alleges illegally required an employee to undergo a health risk assessment and biometric test or suffer adverse consequences. Specifically, the suit alleges that the employer cancelled an employee’s medical insurance after he failed to participate in a supposedly “voluntary” health assessment and biometric testing program. The EEOC maintains that the wellness program constituted disability-related inquiries that were not sufficiently job-related and consistent with business necessity as defined by the federal Americans with Disabilities Act (ADA).

This Wisconsin lawsuit is part of increased enforcement activity by the EEOC targeting employer wellness programs. In August, the EEOC filed another lawsuit against another Wisconsin employer, alleging that an employee was unlawfully fired after objecting to medical examinations and questions related to disabilities as part of a wellness program.

While the outcome of these lawsuits will not be known for some time, they serve as a reminder to employers not to let their zeal for wellness programs cause them to skip legal steps. Here are just a few legal issues that employers should consider when implementing a wellness program:
  • Wellness Programs Must Be Truly Voluntary – A wellness program must truly be voluntary to stay on the right side of the law. A program is not voluntary if it involves cancelling coverage for failure to participate, shifting an insurance premium to employees who choose not to participate, or other adverse consequences for non-participation.
  • Employee Health Information Must Be Kept Private – Health information must be kept confidential under the federal HIPAA law and under disability discrimination laws. Health information should be stored securely and separately from other hard copy or electronic personnel documents and kept private and separate from decision-makers.
  • Wellness Programs Should Not Regulate or Prohibit Lawful Behavior Outside of Work – Minnesota has a lawful consumables product law which protects employees’ use of lawful substances like tobacco and alcohol outside of the workplace. Other states have similar laws or even broader laws that protect any lawful activity outside of work.  To avoid running afoul of these laws, wellness programs should not involve an employer making any employment decisions based on legally protected behavior.
  • Don’t Forget About Disability Accommodations – It can violate disability discrimination laws to deny a disabled employee participation in a wellness program. So, when implementing a program, be mindful of the need to consider and comply with any reasonable accommodation obligations to disabled employees.
  • Check with Legal Counsel for Other Considerations – You may also have other legal requirements to consider, including, for example, potential legal limits on the monetary value of incentives you might offer for participation in a wellness program. In addition, unique state laws may apply. So, before finalizing and implementing any plan, it is wise to consult with counsel.
In the spirit of promoting “wellness,” now is a good time to check the legal health of your employer wellness programs and to make sure that you’re in tip-top shape.

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