“By giving up smoking, drinking and loving, you don’t actually live longer; it just seems longer.”
Whenever this is quoted to people, I find that they all laugh – and treat it as a cute joke. Not one ever takes it literally. After all, who does not have health at the top of their list of New Year resolutions? When companies assume that employees will be pleased to have access to wellness programs and gym facilities, they do it with a zealous commitment to its goals. Who can argue with encouraging healthy behaviors while also driving down costs? Actually, many critics do. They state that wellness programs only benefit those who already live healthy, active lifestyles; financial incentives to get healthier are in reality financial penalties for workers who resist participation or who aren’t as fit. They are also concerned that workplace wellness programs that involve health screenings and the disclosure of potentially sensitive employee information violate employee privacy.
At issue – can employers introduce incentives and penalties in an effort to motivate employees to adopt healthier lifestyles? The answer is actually ‘No’! Improperly designed wellness programs can violate the tenets of the Americans with Disabilities Act (ADA) and draw the ire of the Equal Employment Opportunity Commission (EEOC).
The Affordable Care Act requires that participation in a corporate wellness program to be voluntary, but the law provides no guidance on how to achieve that. This raises the issue of what is meant by voluntary. Critics suggest that the financial incentives and/or the penalties that are linked with participation make the program mandatory. The EEOC has qualified this definition by stating that, to be considered voluntary, a wellness program should neither require participation nor penalize employees for non-participation; though it does not specify if the incentive schemes also render it as involuntary.
The actions recently taken by the EEOC, by filing cases against some employers, affirm this guidance further.
The EEOC has proposed some rules based on its expectations of wellness program:
The EEOC is not the only government agency governing wellness programs. These programs are also governed by the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA), both of which expect the program to be made available to all similarly situated individuals at a workplace. There are areas where the EEOC’s guidance clashes with these two laws, making it necessary for employers to tread a fine line in order to stay compliant with their contradictory expectations.
As of now, the rules from the EEOC are only proposed, but employers would still need to modify their wellness programs to eliminate the mandatory and punitive nature of their programs.
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