Employers Looking to Incentivize Healthy Lifestyles

Employers & Healthy Lifestyles

Lots of us are grappling with rising healthcare costs; and while they can seem challenging to come to term with as an individual, they also pose roadblocks to employers. The personal injury lawyers at Michael T. Gibson, P.A., Auto Justice Attorney to learn more about how healthcare costs have been incentivizing the focus on employers encouraging healthy lifestyle changes for their employees.

If employers provide health benefits to their employees, then those employers wind up bearing the increased cost of healthcare.

• Healthcare spending accounted for just 5 percent of U.S. GDP in 1960
• Now, healthcare spending comprises more than 17 percent of U.S. GDP

This is where wellness programs come in. Plenty of people want to achieve better health. Whether they’re trying to eat better, stop smoking, or get regular exercise, they want an opportunity to be rewarded for their work. Wellness programs help incentivize employees to improve their health.

Employee Wellness Programs: What Are They?

Companies across the nation have established and continue to establish employee-geared wellness programs. These programs are intended to:

• Reduce company costs
• Mitigate employee absences related to illness
• Help keep employees mentally and physically healthy

It’s a little difficult to pin down an exact definition of a wellness program. Depending on the employer, wellness programs might feature a variety of smaller programs, resources, or incentives.

According to the U.S. Centers for Medicare & Medicaid Services, wellness programs:

• …are intended to improve or promote health or fitness
• …allow employers to offer premium discounts, cash incentives, gym memberships, and other similar incentives to participate

At the end of the day, employee wellness programs educate employees about health-related issues and promote the maintenance of healthy lifestyles. In some cases, the programs are purely educational. An employer does not need to attach financial implications to their wellness program. It is not illegal for a wellness program to involve money or incentives—but it is also not illegal for wellness programs to involve neither of these.

The Two Types of Employee Wellness Programs

U.S. law allows for two types of wellness programs: participatory and health-contingent programs.

Participatory wellness programs are open to anybody who wants to participate. These programs base incentives on participation—NOT on achieving certain health outcomes. Popular examples of participatory wellness program incentives might include gym membership reimbursement or diagnostic testing.

Health-contingent wellness programs award incentives based on the achievement of health standards of the performance of daily activities. It follows that the regulations surrounding these particular programs are stricter than those that involve participatory programs.

Do I Have to Complete a Health Screening for My Employer’s Workplace Wellness Program?

Absolutely not!

An employer cannot require you to participate in their medical screening. Their right to require you to provide medical information is, essentially, nonexistent.

The ADA presents a handful of very limited circumstances where employers are permitted to require employees to take medical tests:

• Your employer must have a reasonable belief that you are (a) unable to perform the essential functions of your job or (b) may pose a direct threat to your own or others’ safety
• The reasonable belief must be based on objective evidence

These circumstances are few and far between. Some simple examples might include your employer requiring you to take a medical exam following a seizure on the job.

The Basics: Why do Workplace Wellness Programs Often Pose Legal Issues?

When it comes to workplace wellness programs, there’s a lot that tends to muddy the waters for both employers and their employees. Recent years have seen constant changes in what’s allowed, what’s not, and why when an employer decides to begin a wellness program.

A lot of workplace wellness programs toe the line of legality. It can be difficult for employees and employers alike to ask and answer only the appropriate questions.

Wellness programs sometimes ask employees to provide health information. This usually isn’t nefarious—and it might not even seem unusual—but it does fly in the face of the law under certain circumstances.

American laws are structured to help protect our privacy. Our health and physical condition are some of the most personal and private pieces of information about us—and when employers want to incentivize employees for their health, things can get dicey. Some wellness programs break laws that protect the privacy of disabled employees and those with genetic conditions.

The Law and Workplace Wellness Programs

Wellness programs must comply with HIPAA and ACA rules.

Health Risks Assessments and Biometric Screenings

Workplace wellness programs with Health Risk Assessments (HRAs) or biometric screening need to comply with two key pieces of law:

• The Americans with Disabilities Act (ADA)
• Title II of the Genetic Nondiscrimination Act (GINA)

The first two of these are federal laws that prevent employers from discriminating against employees on the basis of disability or genetics. They help cement wellness programs’ intended purpose: to promote good employee health—NOT to collect health information or shift insurance costs towards the employee.

The ADA and Title II of GINA dictate that wellness programs need to be reasonably designed to achieve their primary goal.

• Under the ADA, employers must give their employees notice of information that will be disclosed to their employer
  • This includes details about what information will be collected, whom it will be shared with and why, what limits there are surrounding disclosure, and how the information will be kept confidential
• GINA requires notice and consent propositions for services to be provided to employees and their families
• Thanks to the ADA and GINA, employers cannot obtain or use employee health information (or information about the health of employees’ families).
• They can, however, ask health-related questions and conduct medical examinations
  • IF the employer is providing genetic or health services as part of a VOLUNTARY wellness program

The EEOC’s Final Rule (And Why it Doesn’t Matter)

Before 2018, employers could also look to another regulation for help developing wellness programs without accidentally stepping on the law’s toes.

• The final rule by the U.S. Equal Employment Opportunity Commission (EEOC)

The EEOC rule helped define how the ADA and GINA related to employer-offered wellness programs that request health information from employees. The final rule was meant to protect employees’ health information.

• The final rule stated that wellness program administrators may disclose information to employers only in aggregate terms

We get it—those may not be the simplest terms.

At the end of the day, the final rule was meant to address a primary concern in the space of employee wellness programs. Most employees need to respond to disability-related inquiries about themselves or their spouses to participate in such programs. The ADA and GINA both restrict employers’ ability to make the aforementioned inquiries.

Under the final rule, these inquiries were allowed as long as they were part of an employee health program reasonably designed to promote health or prevent disease.

Issues arose once questions began to circulate: how voluntary is something if we might spend less money in exchange for participation? As a practical and legal matter, is it even voluntary at all?

The EEOC’s guidance was meant to help curb some anxiety related to these questions. It capped financial incentives for wellness program participation at 30 percent of the total cost of self-only coverage. This rule was meant to ensure that while employers could offer some nice incentives for program participation, the incentives were not so large that they’d sway unwilling participants into involvement.

The American Association of Retired Persons (you know them as AARP) challenged the incentive section of the final rules. The court decided that the EEOC had not provided sufficient reasoning for the 30 percent limit; the rule was not vacated, but it was sent back to the EEOC for reconsideration.

AARP was unhappy with this. They filed a motion to alter or amend the order, the court vacated the incentive section of the final rules, and the rest is history.

What should employers do now that the final rule is all but gone?

Most personal injury attorneys advise a conservative approach to changes in employee wellness programs. The term conservative doesn’t refer to small changes, either—it actually refers to some pretty big ones.

Blanket advice dictates to remove whatever incentives a wellness program has that are subject to ADA or GINA. The easiest amongst these to spot include nicotine use, biometric and lab tests, and even health risk assessments.

What Questions Are Appropriate in Wellness Programs?

If you’re unsure about a question you’ve been asked (or that you want to ask) as part of a wellness program, your best bet is to contact a worker’s rights attorney. Professional florida personal injury lawyers can help answer a lot of the more specific and personal questions that relate to your circumstances.

In general, though, some questions tend to be allowed in wellness programs. They may relate to:

• Blood pressure
• Cancer detection and screening
• Bodyweight
• Cholesterol
• Blood glucose
• Blood pressure

Florida Personal Injury Lawyers Can Help with Wellness Program Planning and Assistance

If you can pin down a knowledgeable employee benefits lawyer, he or she can likely help with your wellness program. Lots of employers are starting to shift towards promoting healthier lifestyles to their employees, but they may not know how to start. Others may be deep into the wellness program game with questions about compliance or continuity.

Regardless, an employee benefits a Florida personal injury attorney can:

• Advise you based on tax issues, the Affordable Care Act, etc. and how they impact the establishment and administration of welfare benefit plans
• Counsel you on various aspects of Consolidated Omnibus Budget Reconciliation Act (COBRA) administration
• Advise of the application of requirements under HIPPA (privacy and enrollment rules, health-status discrimination, etc.)
• Draft plan documents
• Offer advice on the structure of welfare benefit plans
• Counsel you regarding wellness program compliance
• Assist with claims reviews and DOL audits
• Guide you through the requirements for establishing health plans

A Rundown of What Employers CANNOT Do Under an Employee Wellness Program

Lots of us don’t feel comfortable questioning ordinary practices, but we can pinpoint when something goes wrong right in front of us. If something about your employer’s wellness program feels off or makes you feel uncomfortable, it might be best to remember what employers cannot do under the federal laws that govern wellness programs.

An employer MAY NEVER:

• Use employees’ health information against them | Employers should not even use any information that’s gathered due to participation in a wellness program. If information related to age, medical conditions, lifestyle, etc. are used for any purpose outside of wellness program administration, it’s time to contact an personal injury attorney
• Deny an employee the opportunity to participate in a wellness program for health reasons | If an employer wants to run a sponsored wellness program, they have to make it available to all employees. No matter someone’s medical condition or age, employers are legally liable when they prevent employees from participating in a wellness program
• Require a surcharge for the program | In some cases, employers can require employees to pay to participate in a wellness program. It is illegal, though, to require surcharges to participate based on a health condition. In short: an employee cannot be forced to pay more to participate in a health program just because of their lifestyle choices or medical conditions
• Force participation | Nobody can be forced to participate in an employee wellness program. These programs are totally voluntary. If an employer takes adverse action against an employee who does not participate in such a program, it’s illegal
• Share employees’ health-related information | Employee health information is meant to be totally private and secure. Employers are legally mandated to protect this information. If they share it without the employee’s express written consent, it opens up the door to a slew of legal issues

If you are an employee with concerns about a wellness program—or if you’re an employer looking to comply with federal law regarding your health incentives—you should get in touch with a personal injury attorney attorney as soon as possible. A lawyer can help you navigate the laws that surround your circumstances and determine how to protect your rights.

Michael T. Gibson, P.A., Auto Justice Attorney
2420 S. Lakemont Avenue
Suite 150
Orlando, FL 32814
Phone: 407-422-4529