It’s October and most companies are deep into the Wellness Fair season and while it’s great to promote healthy lifestyles for our employees, there are some cautions and pitfalls we need to be aware of.
A recent white paper published in HR Business Legal Reports warns that Corporate Wellness Programs can contradict State and Federal Labor Laws related to discrimination. An illustration from this paper states
wellness programs must be carefully crafted. For example, a wellness program that offers financial incentives to employees who walk a certain number of miles per week may discriminate against employees whose disabilities preclude them from reaching the target number. When developing a program, therefore, employers must be aware of the legal requirements that may impact their decisions. Offering a reasonable alternative that allows a disabled worker to earn the financial incentive may satisfy certain legal requirements – but crafting such alternatives may be challenging. Employers should have their legal counsel review a wellness program before it’s presented to employees.
HR managers need to consider The ADA-American with Disabilities Act in the implementation of wellness initiatives. Reasonable alternatives and accommodations must be available to employees with an identified disability. Also according to the ADA, companies cannot ask employees for their personal health information. So requiring statistics on weight and blood pressure as a way to measure progress in a health promotion would be a violation. Offering a voluntary program for employees, where participants keep track of health stats would be just fine as long as there was no penalty for those who didn’t participate.
According to the same white paper, the U.S. Department of Labor, the U.S. Department of Health and Human Services, and the Internal Revenue Service jointly issued a proposed regulation describing four requirements for a “bona fide wellness program” that would comply with HIPAA:
The rewards that are offered to an individual must be limited (the departments suggest a limit of 10 to 20 percent of the total cost of employee-only coverage).
The program must be reasonably designed to promote good health or prevent disease for the individuals in the program, and must give eligible individuals the opportunity to qualify for the reward at least once per year.
The reward must be available to all similarly situated individuals, and a reasonable alternative standard must be made available for any individual for whom, due to a health factor, it would be unreasonably difficult to meet the initial standard (or for whom it is medically inadvisable to attempt to satisfy that standard).
All plan materials that describe the terms of the wellness program must disclose the availability of a reasonable alternative standard.
Union contracts also need to be considered as they may restrict management’s influence on behavior outside of the identified work duties of an employee. Likewise State laws may prohibit an employer from influencing behavior of an employee who is off duty.
It is clearly advisable to review the recommendations as stated by the Department of Labor, http://www.dol.gov/ cautiously analyze any initiatives for disparate impact on any group of employees and seek legal counsel if you are uncertain that your programs are fair and within the law.