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Wellness Program Minefield
Reliance on Obamacare’s authorization of wellness programs does not mean you won’t be sued.
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The Senate Health, Education, Labor and Pensions (HELP) Committee met on Thursday, January 29. That meeting highlighted a problem that many employers face.

Wellness Programs are used to promote healthy living among employees and to encourage reduction in the unhealthy habits and actions. The end result is, hopefully, a happier, healthier workforce with fewer sick days, less absenteeism, and lower health insurance premiums. These programs received a nod in the Affordable Care Act (ACA) with the introduction of rules to encourage Wellness Programs in conjunction with the other aspects of the ACA.

The Departments of Health and Human Services, Labor, and the Treasury have jointly released rules that continue to support workplace wellness programs. These include, for example, programs that reimburse the cost of gym membership; provide exercise facilities on site; or reward the completion a biometric screenings. Additionally, employers can offer "health-contingent wellness programs." These programs generally require that employees, or other covered members, meet a specific standard related to their health, and in doing so qualify for a reward. The common examples include tobacco cessation programs or incentives that reward biometric goals, like weight and cholesterol levels.

Wellness Programs have become very popular for all the benefits that they potentially provide. The Kaiser Family Foundation reports in the 2014 Employer Health Benefits Survey, that nearly 33% of employers offer a health assessment screening, and employers with 200 or more employees are more likely to request employees to participate. It is also becoming more popular among all employers to offer incentive to complete, or even just participate, in a Wellness Program.

This sounds like great news. Where do the problems come in?

The problems become evident when looking for governance. While the Departments of Health and Human Services, Labor, and the Treasury proposed the rules for the ACA, the Equal Employment Opportunity Commission (EEOC) has not weighed in on the implications of these programs. Any of these screenings can reach deep into the health history, and thus open avenues to possible discrimination litigation. according to the Americans with Disabilities Act (ADA), employers are permitted to conduct medical examinations and to obtain employee medical histories as part of wellness programs so long as employee participation is voluntary. Additionally, according to the Patient Protection of the ACA, the reward for a wellness program may currently be up to 30% of the cost of coverage. These standards have been endorsed by the Treasury Department, the DOL, and HHS, and the Eleventh Circuit has ruled that the ADA may exempt wellness plans from that law.

Even with those endorsements, caution is appropriate. Eric Dreiband, a partner at Jones Day and former EEOC General Counsel pointed out that ACA compliance does not necessarily eliminate risk of ADA liability. In testimony he points out that Since March 2009, the EEOC has yet to define the ‘voluntary’ standard, and their assertion that the Eleventh Circuit decision is in error. This puts both employers and employees throughout the United States in the rather bizarre situation in which the Congress and one part of the Executive Branch of the Government have endorsed a set of standards that it says govern wellness plans and comply with the law while the EEOC has yet to explain what it will treat as ‘voluntary.’ He was quoted as saying:

“The commission’s silence about this issue is perplexing, and the Congress, the EEOC, or both should clarify exactly how a wellness plan will comply with the ADA.”

While the impact of the lack of explanation from the EEOC is concerning, this is still just one side of the issue. So far, the impact discussed does not take into account the impact of employees with disabilities, who are often subjected to probing and intrusive questions. Faced without proper guidance, these employees submit to the questions, subjecting them to the loss of rights afforded them by the ADA and leaving a door to possible future litigation open.

Until the EEOC either endorses the rules set forth by the Treasury Department, the DOL, and HHS or brings their own interpretation of "voluntary," caution is advised.

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