Employee wellness programs that encourage and/or reward healthy habits among a company’s workforce are quickly becoming the new normal in American business. Of all large employers who offer health care coverage more than half have some sort of wellness program to engage their workers’ better instincts when it comes to health and wellness. The nature of these programs varies widely, but many include health risk assessments and biometric screening as well as incentives to exercise or adopt more healthy habits. As these plans have grown in popularity, though, they have attracted greater scrutiny from the federal government, especially with regard to their compliance with the regulations set out by the ADA (Americans with Disabilities Act) which prohibits discrimination based on a person’s disability.
The problem for employers is that the meaning of the term “disability” has broadened in the years since the ADA was enacted in 1990 to include a wide range of long- and short-term medical conditions and not just permanent disabilities. Moreover, the agency charged with enforcing the law, the Equal Employment Opportunity Commission (EEOC), has not always been clear about what may or may not be ADA-compliant when it comes to wellness programs, on top of that a number of court cases have skewed the impact of some of the agency’s decisions.
That changed for the better this summer when the EEOC issued new guidelines, which brought some much needed clarity to the subject. Without delving too deeply into the arcana of the Federal Registry, suffice it to say that compliance with the ADA depends largely on three factors, whether a wellness program is voluntary, whether or not the employer is using more carrot, i.e. incentives, and little or no stick, i.e. punishments, in their application of the program, and finally whether the programs are being applied equally to all employees.
Historically, the big problem for wellness programs generally is that the ADA makes it illegal to inquire about an employee’s disabilities, so any programs that use health assessment testing or screening must be entirely voluntary. Also, any of the information gathered through these assessments must be kept completely confidential and none of it can be used as a part of a job performance evaluation. As long as there is bright, clear and impenetrable line between activities that promote good health and the activities that involve an individual’s promotion within an organization, your wellness program should be ADA compliant. The health information gathered in these programs also cannot be allowed to influence an employee’s health coverage or the deductibles they are expected to pay. An employer can offer positive incentives to an employee to improve their health, so as long as the wellness program relies on positive, carrot-style, inducements. Also, one clear guiding principal that the EEOC seems to be following is to ensure that all employees are playing on a level playing field and are given the same opportunities and incentives that every other employee has, regardless of any potentially disabling medical condition.
But with these EEOC clarifications have come a number of tighter restrictions. The scope of some provisions that were allowed in the past, like the so-called “safe harbor” exceptions, which allowed employers to make less healthy employees pay more for their insurance have been greatly reduced. So this an area that warrants your close attention as an employer. These regulations are very new and their impact won’t be fully understood for a while. But a prudent employer will want to get out in front of this issue and get a good fix on where his or her plan is on the ADA compliance spectrum, something that can only be done by diligent HR research. Ending up at the wrong end of this continuum could mean that the prognosis for your wellness program will be less than healthy.
Dave Sinclair, CEO The WorkPlace Solution