Legal Implications of Employer-Offered Wellness Programs
Written by AskTheLawyers.com™ on behalf of Sarah E. Stottlemyer with Stottlemyer & Associates, LLC.
Employer-offered wellness programs have been controversial from their conception; while the idea of an employer offering new ways for employees to take charge of their health and wellness both at work and at home sounds like a good idea, the problem arises with the “voluntary” nature of these programs.
Employer-offered wellness programs must be voluntary.
One thing that pretty much everyone agrees on in regard to wellness programs is that they should be voluntary; however, in lieu of an official EEOC (Equal Employment Opportunity Commission) definition of the word “voluntary”, there has been some confusion over its implementation.
The biggest rule of thumb employers need to follow in regard to wellness programs is that employees who do not want to participate in the program can in no way be penalized for it. However, this can be hard to regulate. For a wellness program to be 100% voluntary, employees who do not participate cannot be penalized either by fees, raised costs, or other hoops to jump through in order to receive the same standard benefits as other employees.
Employers may benefit from a reduction in their insurance premium by offering an employee-wellness program, but this doesn’t always trickle down.
For example, there have been multiple instances where a company instituted an employee wellness program to receive a reduction in their insurance premium, only to later face a lawsuit when non-participant employees suffered as a result. These wellness programs required employees to submit to a biometric screening to assess basic employee health levels including blood pressure, cholesterol, body mass index, etc.
Employees who did not participate in the wellness program and therefore these screenings received a $500 annual surcharge to their healthcare premium in addition to thousands of dollars of additional surcharges and withheld company contributions to employee health savings. Not only does the penalization of employees for not participating violate EEOC guidelines, but requiring employees to submit to a biometric screening also violates both the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA).
Employer-offered wellness programs may unevenly benefit some employees over others.
According to Health Affairs, it is not uncommon for wealthier employees to choose to participate in these programs and perhaps derive some benefit, whereas groups of lower-income and/or less healthy employees are less likely to participate and more likely to see healthcare premiums rise. Despite the increase in employer wellness programs as an added incentive, Health Affairs also reports that according to several randomized, controlled trials, wellness programs had little to no impact on employee health outcomes. That said, employers will likely continue to offer health and wellness programs as an employee incentive.
Health and wellness programs continue to be considered a big incentivizer for employees.
It is not uncommon for a company to boast about their employer-offered wellness programs alongside company health insurance, paid time-off, and 401(k)s in job descriptions seeking employees. Hopefully, as the employer health and wellness industry continues to grow, the kinks will continue to be worked out of the system and begin offering a real benefit to employees across the board. It is no secret that health and wellness have become big-ticket issues for many employees, and if employers can offer a program with true merit that does not violate EEOC guidelines employees may derive significant benefits. However, if you believe that your employer offers a wellness program that is exclusionary in nature or may otherwise violate EEOC guidelines, reach out to an employment law attorney to discuss your options for corrective action.