Employee wellness programs – from screening for certain medical conditions, to exercise incentives – are becoming increasingly common in workplaces across the U.S. A survey from Fidelity Investment, for example, found that nearly 100 percent of surveyed companies intended to launch some form of wellness program in the near future, and that the number of organizations already offering wellness programs has increased from just over half – 57 percent – in 2009, to just under 75 percent in 2014. The boom in the programs isn’t surprising, as there are financial benefits for employers that introduce the initiatives. After all, the goal of the programs is to reduce the incidence of sickness in the workplace, which in turn will lead to lower insurance costs for the employer. There are obvious benefits for the employees too, of course. Not only will employees’ health likely improve through participation in a wellness program, but chances are it will also make them happier and more productive. Furthermore, in an active and healthy office morale tends to be higher.
“Nearly 100% of surveyed companies intend to launch a wellness program in the future.”
Growing number of employers introduce mandatory wellness programs
In terms of participation, many companies offer the programs on a voluntary basis, but a growing number are making wellness initiatives a compulsory component of work life. According to the New York Times, multitudes of employees are now subject to financial penalties for failing to comply with wellness program mandates. The fines typically take the form of substantially higher insurance premiums. And organizations have the support of The Affordable Care Act, which legally permits employers to introduce penalty charges for failure to participate in the programs.
Could mandatory wellness programs spell legal trouble for HR?
Despite legal approval from The Affordable Care Act, the imposition of mandatory wellness programs is still an area of significant legal confusion, Forbes explained. According to Lawyers.com, a number of state and federal laws could in fact be violated if human resources departments decide to make health enterprises obligatory. Laws such as the Genetic Information Non-Discrimination Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act, could all be broken. And while it isn’t illegal to enforce a mandatory health program, certain aspects of the programs could themselves be legally problematic.
For example, as far as GINA is concerned, employers are prohibited from asking an employee to disclose family medical and genetic history in relation to a wellness program and insurance rates. Put another way, employees that are genetically vulnerable to certain conditions must be treated equally. And in terms of the ADA, a potential legal infraction could occur if a company imposes a compulsory heath risk assessment on all of its employees. This is because the ADA bans managers from asking questions about a worker’s disabilities unless it directly relates to the job in question. The ADEA could also be violated by a wellness initiative, because it prevents any form of discrimination against employees over the age of 40. Given that employees over that age are more susceptible to health issues, setting a standardized company health goal in terms of blood pressure or cholesterol levels could be problematic and a violation of the ADEA. This is because, as Lawyers.com noted, it would be unrealistic to expect the same kind of health outcomes from a 50 year old when compared with a 25 year old, for example.
Could mandatory wellness programs spell legal trouble for companies?To add to the complexity, the Equal Employment Opportunities Commission is pursuing a number of cases pertaining to wellness programs and the ADA. The EEOC tends to take a critical stance of requisite workplace wellness programs, believing them to be in violation an an employee’s civil rights. Indeed, a former worker for the agency, Eric S. Dreiband, told the New York Times in a quote: “The Equal Employment Opportunity Commission does not like wellness plans, period.” Despite this, however, a number of cases brought against organizations by the EEOC have actually culminated in a loss for the government body, with the most recent loss occurring after a legal battle in Wisconsin. The EEOC sued a company named Flambeau, after the corporation ordained that its employees undergo compulsory health screenings, a move which the EEOC claimed was in violation of the ADA. The loss for the EEOC signifies the confusion and potential legal minefield that enforced wellness initiatives could bring. Compounding the uncertainty are steps by the White House and legislators in Congress to protect the right to enforce health programs under the Affordable Care Act.
Organizations advised to exercise caution
Given the patchwork of laws and a lack of an overall consensus on the legality of mandatory wellness programs, HR professionals are advised to use heightened caution when implementing such initiatives. If an employer opts to make such a program compulsory, HR professionals should first ensure that all aspects of the enterprise comply with regulations put forth by laws such as the GINA and ADA. Until a clear legal framework is established, however, it is perhaps advisable for corporations to refrain from making wellness programs a mandatory part of office life, so as to avoid a potentially costly lawsuit from the EEOC. Additionally, employees will arguably value an employer that doesn’t make such rigorous demands pertaining to their personal health. In essence then, the safest course of action, at least at the current time, is to widely promote wellness initiatives without making them obligatory.
