April 20th will mark one year since the U.S. Equal Employment Opportunity Commission (EEOC) published its proposed rule on Workplace Wellness Programs. The purpose was to amend the Americans with Disabilities Act (ADA) to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations.
Six months later, on October 30, 2015 the EEOC published a related notice on workplace wellness programs as they related to compliance under the Genetic Information Non-Discrimination Act (GINA). So while we await these final rules let's take a look at some of the issues addressed by courts and administrative agencies with regard to what employers can, cannot and should do to advance workplace wellness and implement related programs.
First, what are some current trends and benefits employers are offering to support their employees and advance workplace wellness?
- Nap rooms. I kid you not (a.k.a. energy pods). The power nap is in! A recent article reported that businesses lose as much as $63 billion in productivity each year as a result of sleepy workers.
- Wellness apps. One company offers its employees a website and wellness app that lets them peruse the cafeteria menu and make choices that meet their personal eating preferences and goals.
- Wearable Technologies. Some employers provide employees with a wearable (like UtiliFIT) to help them track and monitor their own wellness activities from eating, to exercise and sleep.
- Those are just a few. Want 101 more? Here is just one such list.
That's all well (pun intended) and good but challenges may arise when an employer requires employees to participate in workplace wellness programs, face a penalty or forfeit a benefit if they choose to not do so.
For example, the 5th US Circuit Court of Appeals (covering LA, TX and MS) recently considered a case in which an employee declined to participate in the employer's wellness program. The employee was then placed on an alternate assignment as a result. He filed a charge with the U.S. Equal Employment Opportunity Commission and ultimately filed a claim in court asserting that the mandatory exam, which was required as a part of the wellness program violated the Genetic Information Non-Discrimination Act (GINA).Court rules: Employer: 1 / Employee: 0
Why? The court reminded us that under GINA, while genetic information is likely medical information, not all medical information is genetic information. So when the employer required only a medical exam, there was no violation of GINA. Ortiz v. City of San Antonio Fire Dept.
Let's take this a step further. This time an employer offers a financial incentive of $600 to participate in its wellness program. In addition, the employer conditioned eligibility to enroll in its employee health care plan upon the employee's participation in its wellness program. Then the EEOC gets involved and sues the employer for violating the Americans with Disabilities Act (ADA). Once again, the court finds in favor of the employer. This time it was a federal court in Wisconsin (cheese, glorious cheese). Why? The ADA has a safe harbor provision that permits employers to administer benefit plans that are based on "underwriting risks, classifying risks, and or administering such risks." EEOC v. Flambeau
Workplace wellness programs have faced other legal challenges:
- Under Title VII of the Civil Rights Act of 1964 - where an employer fails to provide religious accommodation for an employee who objects to a flu or other vaccine for religious reasons.
- The US Department of Labor published a Fact Sheet on workplace wellness programs and how they are impacted by the Affordable Care Act.
But do they work? Do wellness programs meet their intended goals and objectives? Read for yourself and draw your own conclusions. Here is just one of myriad articles that I found compelling in giving some of the reports a critical, objective review.
So stay tuned. In the meantime talk to your company's legal counsel to ensure your workplace wellness policies, programs and practices, current or under consideration will comply today and tomorrow as this evolution continues.